Ordered that the order is modified, by deleting the provision thereof which adhered to the original determination denying the plaintiff's motion to vacate the notice of pendency, and substituting therefor a provision granting that motion and vacating the notice of pendency. As so modified, the order is affirmed, insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,
Ordered that the order dated December 7, 1984 is modified accordingly.
The defendant's motion to dismiss the complaint for failure to state a cause of action and for lack of personal jurisdiction was properly denied. The allegations pleaded in the plaintiff's complaint suffice to state a cause of action to recover moneys loaned to the defendant during the period the defendant was married to the plaintiff's daughter. Since the defendant interposed a counterclaim unrelated to the subject matter of the plaintiff's claim against him, the defendant placed himself in the position of a plaintiff who initially invoked the jurisdiction of a court and, by so doing, effectively waived any jurisdictional objection he might have had against the prime action (see, Liebling v. Yankwitt, 109 A.D.2d 780; Siegel, N.Y. Prac § 111, at 138; § 224, at 269).
The plaintiff's motion to vacate the notice of pendency filed by the defendant should have been granted on the ground that the defendant's counterclaim, in essence, seeks a setoff from the amount of moneys the defendant allegedly owes the plaintiff and, thus, does not state a proper basis for filing a notice of pendency. Mollen, P.J., Thompson, Weinstein and Rubin, JJ., concur.