## Facts

- Joan Rubino was injured on April 21, 1980, in a schoolyard controlled by the New York City Board of Education.
- Plaintiffs served a timely notice of claim.
- Plaintiffs served a summons and complaint on the City of New York that named both the City and the Board as defendants, but plaintiffs never served process on the Board.
- The City’s Corporation Counsel answered for the City, but thereafter repeatedly acted as counsel for “defendants,” including conducting discovery and appearing at trial as if representing both the City and the Board.
- After a liability trial, the court dismissed the complaint; the judgment reflected dismissal on motion of Corporation Counsel as attorney for both the City and the Board.
- On an earlier appeal, the dismissal was affirmed as to the City, but the complaint was reinstated and a new trial was ordered against the Board.
- On remand (years later), Corporation Counsel moved to dismiss under CPLR 3211(a)(8), arguing the court lacked personal jurisdiction over the Board due to nonservice; the trial court granted the motion.

## Issues

1. Whether the Board, through Corporation Counsel’s conduct litigating the case on the merits as counsel for “defendants,” made an informal appearance that submitted the Board to personal jurisdiction despite lack of service.
2. Whether the Board was barred (by waiver or estoppel) from asserting lack of personal jurisdiction after extensive participation and after an appellate ruling reinstated the claim against it.

## Decision

- The Appellate Division reversed the order dismissing the complaint against the Board.
- The court held that the Board, through Corporation Counsel’s litigation conduct, made an informal appearance conferring personal jurisdiction.
- The court denied the Board’s CPLR 3211(a)(8) motion and reinstated the complaint against the Board for further proceedings consistent with the prior mandate for a new trial.

## Legal Principles

- A defendant may submit to personal jurisdiction by an informal appearance when it participates in litigation on the merits through counsel, even if formal service was not made.
- Litigation conduct treating a party as represented—such as discovery activity, trial participation, and appellate representation—can constitute an appearance equivalent in effect to a formal appearance.
- A defendant that litigates as a party and delays raising a jurisdictional objection may be estopped from later asserting lack of personal jurisdiction, particularly when the objection is asserted only after adverse rulings and substantial litigation activity.

## Conclusion

Because the Board’s statutory counsel repeatedly acted in the action as counsel for “defendants,” including at trial and on appeal without raising a jurisdictional objection, the Board was deemed to have appeared informally and could not later obtain dismissal for lack of personal jurisdiction based on nonservice.


Rubino v. City of New York, 145 A.D.2d 285, 538 N.Y.S.2d 547 (1st Dep’t 1989)