
    Charles A. Burkhardt, Respondent, v Frank Cuccuzza et al., Defendants, and Sean Fay, Appellant.
   In a negligence action to recover damages for personal injuries, defendant Fay appeals from an order of the Supreme Court, Kings County (Lawrence, J.), dated September 14, 1981, which (1) denied his motion for summary judgment and (2) granted plaintiff’s cross motion to compel him to appear for an examination before trial. Order reversed, on the law, with $50 costs and disbursements, appellant’s motion for summary judgment dismissing the complaint as to him for lack of personal jurisdiction is granted and the plaintiff’s cross motion is denied. In Burkhardt v Cuccuzza (81 AD2d 821) this court reversed an order of Special Term upon the ground that defendant Fay had not been properly served in this action. Accordingly, we reinstated his affirmative defense of lack of personal jurisdiction. Fay is now entitled to summary judgment. Mangano, J. P., Gulotta, Thompson and Brown, JJ., concur.  