Commercial Division Blog

Posted: May 5, 2019 / Categories Commercial, Standing

Defendant Waives Standing Defense By Failing to Raise it in Answer or Motion to Dismiss

On March 7, 2019, Justice Platkin of the Albany County Commercial Division issued a decision in Framan Mech., Inc. v. Dormitory Auth. of the State of N.Y., 2019 NY Slip Op. 50583(U), holding that a defendant waived its standing defense by failing to raise it in an answer or motion to dismiss, explaining:

As a threshold matter, Arch and Framan argue that DASNY waived the defense of lack of standing by failing to include it in a pre-answer motion to dismiss under CPLR 3211 or in its answer.

As held by the Court of Appeals and all four Departments of the Appellate Division, an argument that a plaintiff lacks standing, if not asserted in the defendant's answer or in a pre-answer motion to dismiss the complaint, is waived pursuant to CPLR 3211 (e). DASNY concedes that it failed to preserve the defense of lack of standing, but it contends that Framan and Arch's argument ignores settled case law establishing that the applicable defense in this case is failure to state a cause of action.

The Court does not find DASNY's argument to be persuasive. In fact, DASNY's own notice of motion frames the defense as one of lack of standing, not failure to state a cause of action, and this characterization is echoed in DASNY's opening brief. Moreover, several of the cases relied upon by DASNY, both in its moving papers and in reply, describe the applicable defense as lack of standing.

Moreover, even if DASNY were free to re-characterize the grounds for the relief that it is seeking in response to Framan and Arch's claim of waiver under CPLR 3211(e), the overwhelming weight of authority supports the conclusion that DASNY's defense sounds in lack of standing.

(Internal quotations and citations omitted).

Under New York procedural rules, some defenses are waived if they are not timely brought. This is an example of one application of those rules. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions regarding whether a defense has been waived because of a failure timely to assert it.