Burnstein v. Sullivan - Supreme Court Appellate Term, Second Department

We represented the Plaintiff, a dentist, seeking payment for dental services rendered to defendant and her minor children. The defendant appeared and answered, asserting only a general denial and no affirmative defenses.

Later, we asked the court for summary judgment. In opposition to our motion, defendant asserted, for the first time, that service the complaint was improper. The District Court held our motion for summary judgment in abeyance and ordered that a traverse (or framed issue) hearing be held. 

We made the argument to the appellate court that the defendant timely appeared and answered in the case without making any objection based improper service. The appellate court agreed. Indeed, because defendant had already answered without objection, any objection based on a lack of personal jurisdiction should not have been considered by the District Court as a defense to plaintiff's motion for summary judgment, and a traverse hearing should not have been ordered.