When Is a Waiver Not A Waiver? When You Amend as of Right

• Posted on: Jan 11 2021

When a plaintiff initiates a lawsuit, he/she must file and serve a summons and complaint. Typically, the plaintiff will hire a process server to effect service. If the process server errs in making service (that is, service is deemed to be improper and defective), the defendant may object and assert an affirmative defense that the court lacks personal jurisdiction over him/her because service was defective. However, as discussed in today’s post, this defense can be waived if the objection is not timely made.

The Applicable Law

Under CPLR § 3018(b), a party must “plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading….”  Generally, affirmative defenses are waived by the defendant if not raised in the answer or made the subject of a pre-answer motion to dismiss. 23/23 Communications Corp. v. General Motors Corp., 257 A.D. 367 (1st Dept. 1999); see also CPLR § 3211(e) (“Any objection or defense based upon a ground set forth in paragraph one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading.”). Lack of personal jurisdiction is one such affirmative defense. See CPLR § 3211(e) (“An objection based upon a ground specified in paragraphs eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he does not raise such objection in the responsive pleading.”).

When defective service is at issue, and therefore the court’s jurisdiction over the person is at issue, the defendant must assert that objection in the answer and move to dismiss the complaint on that ground within a certain period of time, lest the defense will be lost forever. Skyline v. Coppotelli, Inc., 117 A.D.2d 135, 140 (2d Dept. 1986). See also CPLR §§ 320, 321, 3211(a)(8), and CPLR § 3211(e). Under CPLR § 3211(e), “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.” E.g., Clermont v. Abdelrehim, 144 A.D.3d 572 (1st Dept. 2016); McGowan v. Hoffmeister, 15 A.D.3d 297 (1st Dept. 2015). The purpose of this portion of CPLR § 3211(e) is “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.” Wade v. Byung Yang Kim, 250 A.D.2d 323, 325 (2d Dept. 1998) (quoting Senate Introducer’s Mem. in Support, Bill Jacket, L. 1996, ch. 501 at 5). 

However, a defendant can remedy the omission (and, therefore, the waiver) if he/she amends the answer within the time frame for amendments as of right under CPLR § 3025(a). See Iacovangelo v. Shepherd, 5 N.Y.3d 184 (2005). In Iacovangelo, the Court of Appeals held that a defendant who fails to assert a jurisdictional objection in an answer will not be deemed to have waived the defense if the defendant corrects the omission prior to the time to amend as of right – that is, before the time to amend the answer without leave of court has expired. In doing so, the Court applied the general rule that an amendment relates back to the time of service of the original pleading. Id. at 187.

The issue of whether a defendant timely moved to dismiss on jurisdictional grounds due to defective service or waived said objection was recently decided by the Appellate Division, First Department in Brafman & Assoc., P.C. v. Balkany, 2021 N.Y. Slip Op. 00083 (1st Dept. Jan. 7, 2021 (here). In Brafman, the Court held that there was no waiver of the jurisdictional defense because defendant amended his answer as of right, even though the defense was not raised in the original answer.

On January 10, 2019, Brafman commenced the action. After filing the summons and complaint, plaintiff’s process server went to defendant’s home on three separate dates, at different times of the day, when defendant or someone of suitable age or discretion would be expected to be at home. On January 23, 2019, pursuant to CPLR § 308(4), plaintiff’s process server taped the papers to the door because no one answered the door on that occasion or on the prior two occasions when service was attempted.

On January 28, 2019, plaintiff filed the affidavit of service of the summons and complaint. On January 31, 2019, defendant filed an answer to the complaint. In the answer, defendant denied the allegations in the complaint. 

Less than 20 days later, on February 14, 2019, defendant filed an amended answer. In that amended pleading, defendant asserted an affirmative defense that the complaint should be dismissed on the ground that jurisdiction had not been obtained over him because the summons and complaint had not been properly served. 

On April 12, 2019, more than 60 days after filing the original answer, but less than 60 days from the filing of the amended answer, defendant filed a motion to dismiss the complaint on the ground that service of the summons and complaint upon him was defective. The motion court denied the motion. Defendant appealed.

The First Department affirmed the motion court’s decision, though it agreed with defendant that there was no waiver. 

The Court found that defendant’s amendment as of right cured the omission of including the jurisdictional defense: “Having added it to his amended answer within the time frame for amendments as of right under CPLR 3025(a), its omission from his original response does not constitute waiver.” Slip Op. at *1 (citing Iacovangelo, supra). The Court explained that “[t]he statute makes clear that defendant’s 60-day clock for a motion to dismiss on grounds of improper service began to run from the date of his amended answer, not from his original response, when the objection had not yet been raised.” Id.

Turning to whether service was defective, the Court held that it was not. Id. The Court rejected defendant’s argument that plaintiff failed to satisfy the “due diligence requirement of CPLR 308(4).” Id. In so doing, the Court explained that “‘[t]here are no rigid standards governing the due diligence requirement for substituted service…’.” Id. (quoting Bank of America, N.A. v. Budhan, 171 A.D.3d 622, 622 (1st Dept. 2019) (citing Bank Leumi Trust Co. of N.Y. v. Katzen, 192 A.D.2d 401 (1st Dept. 1993)). Thus, said the Court, “the successive attempts to serve defendant personally at various times of the day, on different days of the week (a Monday, a Wednesday, and a Friday) satisfied the due diligence requirement so as to permit nail-and-mail service.” Id. (citing Hochhauser v. Bungeroth, 179 A.D.2d 431 (1st Dept. 1992)).

The Court also rejected the notion that the time of day or place of service negated the propriety of plaintiff’s service under CPLR § 308(4). 

Defendant, who does not challenge that the address used by the process server was his ‘usual place of abode,” avers plaintiff could not have reasonably expected him to be at home during the process server’s three weekday attempts. Although defendant stated, in his affidavit in support of his motion, that he was “working (and travelling) away from home at the time,” the conclusory nature of these assertions are inadequate and do not create an issue of fact to justify a traverse hearing. Defendant does not state where he was “working (and travelling),” at the time, or state other facts to show that it was unreasonable for plaintiff’s process server to expect him to be home at the three different times and different days of the week of his attempts. Contrary to defendant’s contention, plaintiff’s process server did not have an obligation to determine where defendant’s place of business might have been in order for his efforts to constitute due diligence.

Id. (citations omitted).

Takeaway 

Brafman teaches practitioners and pro se litigants a valuable lesson: a defendant can correct the omission of a waivable defense, such as personal jurisdiction, by asserting it in an amended answer in which the amendment is made as of right. As the Court of Appeals concluded in Iacovangelo:

[P]ermitting a defendant to add a jurisdictional defense to an answer by an amendment as of right is consistent with CPLR 3211 (e), and advances the purpose of CPLR 3025 (a). CPLR 3025 (a) gives a party 20 days after serving a pleading to correct it or improve upon it, and the addition of a jurisdictional defense is no less proper a correction or improvement than any other. We hold that a party who adds such a defense by an amendment as of right “raise[s] such objection in the responsive pleading” within the meaning of CPLR 3211 (e).

Iacovangelo, 5 N.Y.3d at 187. 

Brafman also teaches that if such an amendment is made under CPLR § 3025(a), then, under CPLR § 3211(e), the 60-day clock begins to run from the date of the amendment, not from the date of the original pleading.