Mutual Home Dealers Corp. v. Alves

This motion to vacate a judgment of foreclosure and sale on the ground that defendant was not served with process has been combined with a second ground to the effect that the defendant has a meritorious defense.

The effect of this generally is to waive the first ground, since a discussion of the merits constitutes a submission to the jurisdiction of the court, making the original absence of it immaterial. (Gundersheim v. Kurcer, 28 Misc 2d 463.) If we assume that defendant has now lost the right to contest jurisdiction, by urging the merits, the only purpose of a hearing on the traverse would…