(dissenting). This case poses the novel question of whether a plaintiff is entitled to a jury trial on the issue of personal service of a summons where the defendant alleged to have been served interposes the defense that service of process was not properly made.
Plaintiff is a construction worker. He was seriously injured when he fell through an open hoistway of a building then under construction at 211 Thompson Street, New York City. The building is owned by defendant 211 Thompson Corp. (211). Thurcon Construction Corp. (Thurcon) was the general contractor in charge of construction. The other defendants, who have defaulted, are alleged to have had some supervisory duties in connection with the construction work. 211 interposed, as an affirmative defense, the claim of no personal jurisdiction. After the Statute of Limitations had expired, plaintiff moved to strike the affirmative defense. 211 cross-moved to dismiss upon the ground that the action was time barred. Special Term referred the issue of service to a referee. Pending receipt of the referee’s report the motion and cross motion were held in abeyance. Plaintiff then moved to reargue, contending that he was entitled to a jury trial of the issue. While Special Term granted reargument, it adhered to its original determination. This appeal by plaintiff followed.
In support of his contention that he is entitled to a jury trial as a matter of right, plaintiff relies largely on 'the Practice Commentaries of Professor Siegel to CPLR 3211. Professor Siegel notes (McKinneys Cons Laws of NY, Book 7B, CPLR C3211:48, pp 52-53):
“If the ground of the motion is such that resolution of the fact issue in favor of the movant will dismiss the case and preclude suit from being brought upon the cause again in *96New York, a jury trial will be required if either side insists upon it. See CPLR 2218. Grounds that fall under this category would be release, res judicata, payment, statute of limitations, etc. If the grant of the motion dismissing the case would not prevent suit from being brought again, jury trial of the factual issue is not required. Examples of these grounds would be lack of jurisdiction (personal, rem or subject matter), temporary disability of a party, other action pending (CPLR 3211 [a] [4]), failure to join a party, etc.
“Even on these latter grounds, however, a situation can arise in which jury trial should be granted. If it appears that a dismissal for lack of personal jurisdiction, for example, will take place at such time as would prevent plaintiff from suing anew because of the statute of limitations, see 03211:41, the impact of the dismissal would be permanently to oust the plaintiff from the New York courts and the fact issue on the jurisdictional issue should therefore be tried by jury”.
We find some difficulty with the commentary. CPLR 2218 authorizes the court to order that an issue of fact raised on a motion be tried separately. It provides that “[i]f the issue is triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issue” (see, e.g., Barrella v Richmond Mem. Hosp., 88 AD2d 379, 381; Fonda v Paulsen, 46 AD2d 540, 545). However, the logic of Professor Siegel’s commentary would condition a jury trial not on the constitutional right thereto but upon the stage of the proceedings in which the right is asserted. As both Barrella and Fonda clearly seem to indicate, if the issue to be decided on the motion is an issue which ought to be determined upon a trial, then the right to a jury trial obtains. However, where, as here, the issue to be determined deals with the issue of the right to a trial, we can see no basis for requiring that the question be tried by a jury.
Moreover, the question here involved is one of law rather than one of fact. There is no dispute but that service was, in fact, made. The only question is whether the person so served had actual or apparent authority to accept such service. While determination of the issue may involve the ascertainment of facts, in last analysis the conclusion *97required to be reached is one of law. For these reasons we would affirm the holding of Special Term (cf. Fashion Page v Zurich Ins. Co., 50 NY2d 265).
We take this occasion to note that more and more we are being confronted with situations where the claim that the court does not have jurisdiction of the person of defendant (CPLR 3211, subd [a], par 8) is reserved by answer. Motions directed to this objection are not finally resolved until after the Statute of Limitations has expired. Frequently plaintiffs with meritorious claims find themselves out of court, as this plaintiff may be, because the statute permits the claim to be interposed as a defense rather than requiring that the issue be resolved before answer. In these circumstances we think remedial action is appropriate.
Sullivan, J. P., and Silverman, J., concur with Mironas, J.; Bloom and Kassal, JJ., dissent in an opinion by Bloom, J.
Order, Supreme Court, New York County, entered on September 3,1982, modified, on the law, without costs and without disbursements, to the extent of directing a jury trial on the issue of the validity of the service, and otherwise affirmed. The appeal from the order of said court entered on June 24, 1982, is dismissed as having been superseded by the appeal from the order entered on September 3, 1982. This court, sua sponte, grants defendant-respondent leave to appeal to the Court of Appeals and pursuant to CPLR 5713 certifies that the following question of law, decisive of the correctness of its determination, has arisen, which in its opinion ought to be reviewed by the Court of Appeals: “Was the order of this court, which modified the order of the Supreme Court, properly made?”