Although defense counsel had hired an investigator to determine whether IOM was still in business, there was sufficient information within the 60–day time limit upon which to move. Thus, counsel failed to make a showing of undue hardship so as to extend the statutory deadline (see Wiebusch v. Bethany Mem. Reform Church, 9 A.D.3d 315, 781 N.Y.S.2d 6 [1st Dept.2004] ; Aretakis v. Tarantino, 300 A.D.2d 160, 751 N.Y.S.2d 481 [1st Dept.2002] ). In view of the foregoing, we do not reach the issue of whether service was properly effected.
DLO waived its defense of lack of personal jurisdiction based on improper service by failing to move on it within 60 days after having previously raised it in its answer ( seeCPLR 3211[e]; Aretakis v. Tarantino, 300 A.D.2d 160, 751 N.Y.S.2d 481 [1st Dept.2002] ). The motion court correctly declined to dismiss as against DC the third cause of action, for money had and received, inasmuch as the complaint alleges that both defendants received, and have unjustifiably retained, funds sent to them by their foreign clients to pay plaintiff's fees, and the documentary evidence submitted in support of DC's motion does not conclusively establish that the allegations concerning DC's receipt and retention of these funds are untrue.
Defendants failed to sustain their burden of showing entitlement to a discretionary change of venue pursuant to CPLR 510(3) ( see Aretakis v. Tarantino, 300 A.D.2d 160, 751 N.Y.S.2d 481 [2002] ). In particular, defendants failed to present “affidavits or other proofs” from material witnesses claiming that they would be inconvenienced by testifying in New York County ( Herrera v. R. Conley Inc., 52 A.D.3d 218, 219, 860 N.Y.S.2d 21 [2008] ).
Friedman, J.P., Catterson, Moskowitz, Freedman, Abdus-Salaam, JJ. Defendants failed to sustain their burden of showing entitlement to a discretionary change of venue pursuant to CPLR 510(3) ( see Aretakis v Tarantino, 300 AD2d 160). In particular, defendants failed to present "affidavits or other proofs" from material witnesses claiming that they would be inconvenienced by testifying in New York County (Herrera vR. Conley Inc. , 52 AD3d 218, 219).
We agree with plaintiff that Supreme Court erred in granting the motion of Thomas L. Greer, M.D. (defendant) seeking dismissal of the complaint against him on the ground of improper service of process. Defendant failed to move to dismiss the complaint against him on that ground within 60 days after having served an answer setting forth an objection to service and thus waived that objection ( see B.N. Realty Assoc. v Lichtenstein, 21 AD3d 793, 796; Dimond v Verdon, 5 AD3d 718, 719; Aretakis v Tarantino, 300 AD2d 160). We further agree with plaintiff that defendant did not demonstrate the requisite "undue hardship" to justify the extension of defendant's time for moving to dismiss the action on the ground of improper service (CPLR 3211 [e]; see B.N. Realty Assoc., 21 AD3d at 796-797; State Farm Fire Cos. Co. v Firmstone, 18 AD3d 900, 902; Worldcom, Inc. v Dialing Loving Care, 269 AD2d 159).
However, the subpoena is invalid and the court is without jurisdiction -no amount of delay can change that. Cobalt's legal support for its waiver argument, Aretakis v Tarantino, 300 A.D.2d 160 [1st Dept 2002], is inapplicable since it speaks to personal jurisdiction and a statutory deadline to raise it, not the UIDD Act. Since Discovery Referee Gold's decision is clearly erroneous on this issue, the court is compelled to reverse it.
The defense of culpable conduct is properly struck because the Court has determined that Jones' negligent operation of his motor vehicle was the sole proximate cause of the subject accident. Jones waived the affirmative defense of lack of personal jurisdiction based on improper service by failing to move on it within 60 days after having previously raised it in his answer (see CPLR 3211 [e]; Tannenbaum Helpern Syracuse & Hirschtritt LLP v Deheng L. Offs., 127 A.D.3d 564, 565 [1st Dept 2015], citing Aretakis v Tarantino, 300 A.D.2d 160 [1st Dept 2002]).
Additionally, of the defendants' remaining affirmative defenses, the first affirmative defense for lack of personal jurisdiction was waived as the defendants did not move to dismiss the complaint until more than 60 days after they served their answer. See Aretakis v Tarantino, 300 AD2d 160 (1st Dept. 2002); CPLR 3211(e). The defendants' twelfth and eighteenth affirmative defenses for assumption of risk and reduction of judgment pursuant to CPLR 4545(c) are improper as those defenses apply only to actions seeking to recover damages for personal injury, injury to property, or wrongful death.
CPLR §3211(e) specifically indicates that "an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the Court extends the time upon the ground of undue hardship". As such, a party waives the defense of lack of personal jurisdiction based on improper service by failing to move on it within 60 days after having previously raised it in its answer (See Tannenbaum Helpern Syracuse & Hirschtritt LLP v. DeHeng Law Offs., 127 AD3d 564 (NY App. Div. 1st Dept 2015) citing CPLR §3211 (e); Aretakis v. Tarantino, 300 AD2d 160 (NY App Div 1st Dept 2002)).
At the outset, the court finds that defendant's objection that she was not served with the summons and complaint, has been waived pursuant to CPLR 3211(e) Under CPLR 3211(e), a defendant challenging service is required to move for judgment on that ground within 60 days of filing the answer, or otherwise a defense based on improper service is considered waived. See B.N. Realty Assocs v. Lichenstein, 21 AD3d 793 (1st Dept 2005); Wiebusch v. BethanyMemorial Reform Church, 9 AD3d 315 (1st Dept 2004); Aretakis v. Tarantino, 300 AD2d 160 (1st Dept 2002). While 3211(e) authorizes the court to extend the statutory deadline "upon the ground of undue hardship," defendant provides no grounds for granting such relief.