Addesso v. Shemtob

Full title: WILLIAM J. ADDESSO, Respondent, v. DAVID SHEMTOB et al., Appellants

Court: Court of Appeals of the State of New York

Date published: Jul 9, 1987

70 N.Y.2d 689 (N.Y. 1987)

518 N.Y.S.2d 793

512 N.E.2d 314

Opinion

Decided July 9, 1987

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Gerard E. Delaney, J.

Herman S. Rosen for appellants.

Sally Weinraub for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff commenced this action for specific performance of a contract for sale of certain real estate by service of summons and complaint. Before answering, defendants moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action. Within 20 days of service of his original complaint, plaintiff served defendants with an amended complaint (CPLR 3025 [a]). In their answer to the amended complaint, defendants asserted as an affirmative defense that the court lacked personal jurisdiction over them (CPLR 3211 [a] [8]) alleging that the summons and the original complaint were not properly served. On plaintiff's motion for summary judgment, Supreme Court held that under CPLR 3211 (e) defendants had waived the defense of lack of personal jurisdiction because they had not raised the defense in their earlier CPLR 3211 motion. The Appellate Division unanimously affirmed.

CPLR 3211 (e) provides, in pertinent part, that the defense of lack of personal jurisdiction "is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection". There is no reason to depart from the statute's plain language even though the jurisdictional defect was asserted in a pleading made as of right in response to a complaint amended as of right by plaintiff. The basis for the objection of lack of personal jurisdiction — improper service of the summons and the original complaint — should have been made in the earlier CPLR 3211 (a) motion to dismiss.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.