Commercial Division Blog

Posted: May 18, 2019 / Categories Commercial, Motion to Dismiss; Motion for Judgment on the Pleadings, Service of Process

Party Asserting Lack of Service as an Affirmative Defense Must Move for Judgment on that Defense Within 60 Days of Answering

On May 8, 2019, the Second Department issued a decision in U.S. Bank N.A. v. Roque, 2019 NY Slip Op. 03648, holding that a party asserting lack of service as an affirmative defense must move for judgment on that defense within 60 days of answering, explaining:

An objection that the summons and complaint 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. Here, the defendant waived his defense of lack of personal jurisdiction on the basis of improper service of process, as he failed to move for judgment on that ground within 60 days after serving his answer.

Contrary to the defendant's contention, the requirement in CPLR 3211(e) that a party move for judgment upon the ground of improper service within 60 days after service of the responsive pleading is not limited to motions made pursuant to CPLR 3211 and applies with equal force to motions made pursuant to CPLR 3212. The purpose of the 1996 amendment to CPLR 3211(e), which added the 60-day time limit, was to require a party with a genuine objection to service to deal with the issue promptly and at the outset of the action ferret out unjustified objections and provide for the prompt resolution of those that have merit.

Where a party objecting to service elects not to move to dismiss but to interpose a pleading containing that objection, CPLR 3211(e) requires that a motion for summary judgment on that ground be made within the 60-day time limit provided by that statute. That the temporal restriction on such motions for judgment was placed by the Legislature in CPLR 3211, which deals with motions to dismiss, rather than in CPLR 3212, which governs summary judgment motions, is of no moment. The guiding consideration is the clear legislative intent that service objections be dealt with promptly. CPLR 3211(e) expressly requires that a motion for judgment be made within 60 days after service of the responsive pleading. A motion pursuant to CPLR 3212 is such a motion and is made after issue is joined by the service of an answer.

Accordingly, the defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against him should have been denied.

(Internal quotations and citations omitted).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. As shown here, there are rules regarding how long a defendant has to move for dismissal based on improper service. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have a question regarding the proper way to serve a defendant, bringing them into a lawsuit, and what to do if the defendant .