Pergament Distributors, Inc., Respondent, v. Net Realty Holding Trust, Appellant

Pergament Distributors, Inc., Respondent, v Net Realty Holding Trust, Appellant. [MAJORITY] — In an action, inter alia, to permanently enjoin the termination of a lease, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (DiPaola, J.), dated October 15, 1985, as overruled its assertion that the court lacked jurisdiction over it. Order reversed insofar as appealed from, on the law, with costs, and action dismissed, without prejudice to the plaintiff, if it be so advised to either commence a new action, or to move to amend its answer in the action entitled Net Realty Holding Trust v County Seat Plaza Assoc. & Pergament Distribs., pending in the Supreme Court, Nassau County, to assert this matter as a counterclaim and to move for a preliminary injunction in that action. Since the defendant was subject to long-arm jurisdiction pursuant to CPLR 302, service upon its attorney pursuant to CPLR 303 was not proper (see, Siegel, NY Prac § 96). Moreover, the defendant’s attorney was not the defendant’s authorized agent for service of process pursuant to CPLR 318. The plaintiff’s reliance upon CPLR 308 is also misplaced since the defendant is not a natural person but rather a Massachusetts trust, which must be served in accordance with the provisions of General Associations Law § 13. Accordingly, service upon the defendant’s attorney did not confer jurisdiction over the defendant. Brown, J. P., Weinstein, Niehoff and Eiber, JJ., concur.