A recent Second Department decision in Federal National Mortgage Association v. Cassis offers an important reminder that a defendant’s conduct after appearing in an action can result in the waiver of a personal jurisdiction defense, even where questions concerning service of process have previously been litigated. Adam Swanson and Jessie Bonaros represented the appellant Federal National Mortgage Association in obtaining the reversal.
On September 23, 2026, the New York Supreme Court, Appellate Division, Second Department reversed a Kings County Supreme Court order that had dismissed a mortgage foreclosure action against the defendant for lack of personal jurisdiction and vacated the plaintiff’s note of issue.
The foreclosure action began in 2009. Although the defendant initially participated in mandatory settlement conferences through a limited notice of appearance, her counsel subsequently filed a general notice of appearance in October 2012. The defendant did not move to dismiss for lack of personal jurisdiction at that time or assert the defense in a responsive pleading. Instead, she waited approximately three and a half years before raising the jurisdictional issue in an April 2016 cross-motion.
Cassis’s cross-motion was held in abeyance pending a traverse hearing, which was referred to a special referee to determine whether she was validly served with process. The special referee ultimately determined that she was not. In response to that decision, plaintiff moved for an extension of time to serve defendant. That motion was initially granted by the Supreme Court but was subsequently reversed on appeal by the Second Department in October 2020. In the interim, however, Cassis’s cross-motion to dismiss had been marked off by the Supreme Court as moot in April 2017.
The Second Department distinguished the defendant’s earlier participation in settlement conferences, which did not constitute a formal or informal appearance on the merits, from the later general notice of appearance. The court held that by filing the general appearance and then waiting three and a half years to seek dismissal for lack of personal jurisdiction, the defendant waived her personal jurisdiction defense. (Note: the court’s decision was also made even though the referee determined that service was invalid.) The court, therefore, concluded that the Supreme Court erred in restoring and granting the defendant’s motion to dismiss.
The appellate court also held that the defendant’s separate motion to vacate the note of issue should have been denied. Because the motion was made more than 20 days after the note of issue was filed, the heightened standard under 22 NYCRR 202.21(d) applied. The defendant failed to demonstrate the required unusual or unanticipated circumstances warranting vacatur.
The decision underscores the importance of promptly preserving jurisdictional defenses. A limited appearance for purposes of a CPLR 3408 settlement conference does not necessarily constitute an appearance on the merits. But once counsel enters a general appearance, delaying the assertion of a personal jurisdiction defense may result in waiver. The decision also reinforces the stricter showing required to vacate a note of issue when a motion is made outside the 20-day period prescribed by 22 NYCRR 202.21(e).