N.Y. C.P.L.R. § 3211

CPLR 3211(a)(1) does not support dismissal based on a collective bargaining agreement’s arbitration provision when that provision does not cover the plaintiff’s claim.

Espinal v. MPI Mgt. LLC · filed 2024-10-24(a)(1)

In addition, Supreme Court should not have dismissed the complaint under CPLR 3211(a)(1), as the collective bargaining agreement's arbitration provision does not cover plaintiff's claim.

Section 3211 does not provide a basis to dismiss an action because of a pending arbitration proceeding when no arbitration award has been issued.

Liang v. Yi Jing Tan · filed 2016-06-22(a)

In the absence of an arbitration award, CPLR 3211 does not furnish a basis for dismissal of the action based on the arbitration proceeding (see Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211, AFL-CIO v Office of Labor Relations of City of N.Y., 45 NY2d 735, 738 [1978]; Hui v New Clients, Inc., 126 AD3d 759, 760 [2015]).

An arbitration award supports dismissal under Section 3211(a)(5) only if the award is subject to confirmation.

Marracino v. Alexander · filed 2010-03-19(a)(5)

Thus, the arbitration proceeding did not comply with the requirement of CPLR 7506 (d), the award is not subject to confirmation, and the complaint survives defendant’s motion pursuant to CPLR 3211 (a) (5).

CPLR 3211(a)(5) does not permit dismissal based solely on an arbitration clause before arbitration has determined the dispute.

D-Lion Co. v. United Excavating & Paving, Inc. · filed 1963-12-11(a)(5)

The precise question presented here, apparently of first impression, is whether rule 3211 permits, prior to the inception of an arbitration proceeding, dismissal of a cause of action upon the allegation that an arbitration clause is applicable. ... Such a purpose could be served only by an arbitration which had proceeded to the point of determination of the dispute, and certainly would not be applicable to the instant situation, which requires the resolution of “threshold questions 77 to be determined before an action is stayed or arbitration compelled.

Section 3211(a)(5) permits dismissal on the ground of arbitration only after an award has been made.

Langemyr v. Campbell · filed 1965-06-28(a)(5)

However, Special Term should not have granted the cross motion to dismiss the complaint pursuant to CPLR 3211. ... After “ arbitration and award ’ ’ the defendant, if so advised, may renew his motion to dismiss pursuant to CPLB 3211.

CPLR 3211 does not permit dismissal based on a contract’s arbitration provision when there has been no arbitration and award.

Prince of Peace Lutheran Church v. Hibner · filed 1974-05-06

In the absence of arbitration and an award, CPLR 3211 furnishes no basis for a dismissal because of the presence in the contract of an arbitration provision ... Hence, the affirmative defense of arbitration should be stricken.

CPLR 3211(a)(5) permits dismissal when a common-law arbitration award bars relitigation of an issue the parties submitted to arbitration.

Berman v. Shatnes Laboratory · filed 1973-12-31(a)(5)

The determination of the Din Torah was in the nature of a common-law award in arbitration (Matter of Kozlowslci v. Seville Syndicate, 64 Mise 2d 109, 113) and acts as a bar to relitigating essentially the same- issue that ¿was decided thereby in the guise of the instant libel action (CPLR 3211, subd. [a], par. 5).

A motion to dismiss based solely on a release should be denied when the complaint alleges that the release was procured by fraud or duress.

Anger v. Ford Motor Co. · filed 1981-02-26(a)(5)

Where a complaint alleges fraud or duress in the procurement of a release eith.er by way of an equitable action to rescind or by way of an action at law for damages sustained as a result of the release, a motion to dismiss which is based solely on the release should be denied (see Newin Corp. v Hartford Acc. & Ind. Co., 37 NY2d 211, 217; Goldsmith v National Container Corp., 287 NY 438; Smith v A.A. Truck Renting Corp., 13 AD2d 1035; Troisi v Central Trust Co., 86 NYS2d 726, affd 274 App Div 1026; Gordon v Pushkoff, 67 NYS2d 873, affd 272 App Div 872; McDermott v Becker, 86 NYS2d 10).

An arbitration clause alone is not a ground to dismiss an action under CPLR 3211(a)(5).

Avery v. Avery · filed 1981-05-11(a)(5)

This interpretation of the agreement does not mean, however, that the first and second causes of action (for arrears and an increase in child support) should be dismissed, for, as the plaintiff correctly points out, the existence of an arbitration clause in the agreement is neither a defense to her action nor a ground for dismissal.

Section 3211 permits a sovereign immunity defense to be raised as both lack of subject matter jurisdiction and failure to state a cause of action.

Karen v. State · filed 1981-11-06(a)(2), (a)(7)

This “defense” is really a combination of lack of subject matter jurisdiction (CPLR 3211, subd [a], par 2) and failure to state a cause of action (CPLR 3211, subd [a], par 7).

CPLR 3211(a)(5) does not warrant dismissal based on prior arbitration awards when the proceedings lack identity of parties and issues.

O'Riordan v. Suffolk Chapter, Local No. 852, Civil Service Employees Ass'n · filed 1982-07-06(a)(5)

Contrary to Special Term’s determination, plaintiffs’ action is not barred by the cited awards in arbitration (see CPLR 3211, subd [a], par 5). ... The arbitration proceedings asserted as controlling and the instant action, do not have the requisite identity of parties and identity of issues (see Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 70-71; Israel v Wood Dolson Co., 1 NY2d 116, 118-119).

Section 3211(a)(5) bars a suit after a final and binding arbitration award even when the claimant declines to satisfy a condition for payment under the award.

Zupan v. Firestone · filed 1982-12-21(a)(5)

The fact that plaintiff elected not to pursue her claim to the return of the $3,500 because unwilling to submit to having to give back the bridgework, resulting in repayment to defendant, does not render the arbitration award any the less significant in respect of the provisions of CPLR 3211 (subd | a], par 5), and plaintiff’s suit is barred by its operation.

Section 3211(a)(5) permits dismissal of a cause of action barred by a release.

Corvino v. CBS, Inc. · filed 1983-02-07(a)(5)

The defendant moved to dismiss the action pursuant to CPLR 3211 (subd [a], pars 1, 5) on the grounds that both causes of action were barred by a defense founded upon documentary evidence and release. The first cause of action must be dismissed because, in a writing signed by him and accepted by defendant, plaintiff released defendant from the terms of the agreement which is the subject of that cause of action.

Section 3211(a)(5) permits dismissal based on an arbitration and award, but an arbitration clause alone does not warrant dismissal.

Ogoe v. New York Hospital · filed 1984-03-06(a)(5)

The mere existence of an arbitration clause in the contract would not authorize dismissal of the action.

A factual dispute over whether a release was procured by duress precludes dismissal of counterclaims based on that release under CPLR 3211(a)(5).

Dunkin' Donuts of America, Inc. v. Rovegno · filed 1984-03-12(a)(5)

There are issues of fact as to whether or not the release in question was procured by means of duress which preclude dismissal of defendants’ counterclaims (see Newin Corp. v Hartford Acc. & Ind. Co., 37 NY2d 211, 211; Anger v Ford Motor Co., 80 AD2d 736).

Section 3211(a)(5) does not permit dismissal based on a consumer’s rejected, nonbinding Lemon Law arbitration award.

Mountcastle v. Volvoville, USA, Inc. · filed 1985-10-02(a)(5)

Accordingly, the informal dispute resolution procedure resorted to in this case and the resultant award, in the face of plaintiffs’ rejection of the decision, do not form the basis for a dismissal of this case pursuant to CPLR 3211 (a) (5).

An arbitration award that cannot be confirmed and finalized cannot support a motion to dismiss based on arbitration and award under CPLR 3211(a)(5).

Sartiano v. Becker · filed 1986-04-14(a)(5)

An arbitration award which is not capable of confirmation and, therefore, finalization ... cannot serve as the foundation for a defense of arbitration and award pursuant to ... CPLR 3211 (a) (5).

A motion to dismiss under CPLR 3211(a)(5) based on an arbitration award fails when the later claim was neither submitted to nor decided in the arbitration.

Central Water Heater & Sales Corp. v. Adler · filed 1987-03-16(a)(5)

We reverse insofar as appealed from on the basis that the loan was neither the subject of nor decided by the arbitration.

An arbitration award that cannot be confirmed cannot support dismissal based on arbitration and award under CPLR 3211(a)(5).

Nastasi v. Artenberg · filed 1987-05-04(a)(5)

An arbitration award which is not capable of confirmation, and, therefore, finalization (see, Matter of Mossman [MVAIC], 19 AD2d 842), cannot serve as the foundation for a defense of arbitration and award pursuant to CPLR 3211 (a) (5)”.

Section 3211(a)(5) requires dismissal of an action following arbitration and award when a party tries to challenge the award through a separate action.

Home Insurance v. Country-Wide Insurance · filed 1987-11-30(a)(5)

It is well settled that an arbitration award can be vacated only on the grounds set forth in CPLR 7511 and that following arbitration and award a dismissal of the action pursuant to CPLR 3211 (a) (5) is required (see, Matter of Biller [David], 37 AD2d 954).

An agreement to arbitrate does not provide a basis for dismissal under CPLR 3211(a)(5).

Fantastic Enterprises, Inc. v. S.M.R. Enterprises, Inc. · filed 1988-12-01(a)(5)

An agreement to arbitrate is not a defense to an action (De Sapio v Kohlmeyer, 35 NY2d 402). Thus, it may not be the basis for a motion to dismiss (Allied Bldg. Inspectors Intl. Union of Operating Engrs. v Office of Labor Relations, 45 NY2d 735).

CPLR 3211(a)(5) bars a cause of action when there has been a prior arbitration and award on the same claim.

Katz v. Kar · filed 1993-04-26(a)(5)

We find that the plaintiff’s action is barred pursuant to CPLR 3211 (a) (5), which states that a cause of action cannot be maintained where there has been a prior "arbitration and award” on the same claim.

CPLR 3211(a)(5) does not permit dismissal based on an arbitration award from a proceeding that denied a party the right to counsel.

Volpe v. Cortes · filed 2005-03-28(a)(5)

Accordingly, the award rendered by the Peer Review Committee “cannot serve as the foundation for a defense of arbitration and award pursuant to CPLR 3211 (a) (5)” (Sartiano v Becker, 119 AD2d 656, 656-657 [1986]; see Paciello v Ariola, 130 AD2d 640 [1987]; Nastasi v Artenberg, 130 AD2d 469 [1987]).

Section 3211(a)(5) does not bar a claim on the ground of arbitration and award when the arbitrators neither granted nor denied that claim.

New York Cooling Towers, Inc. v. Goidel · filed 2005-07-11(a)(5)

The defendants’ assertion that the plaintiffs action is barred by arbitration and award pursuant to CPLR 3211 (a) (5) is without merit as there was no “award” either granting or denying a claim for counsel fees (see, Central Water Heater & Sales Corp. v Adler, 128 AD2d 665 [1987]).

A limitations motion under CPLR 3211(a)(5) is not treated as an application to stay arbitration merely because the plaintiff agrees that the dispute is arbitrable.

Kytel International Group, Inc. v. Total-Tel Carrier Services · filed 2005-10-06(a)(5)

That plaintiffs opposition to the motion agreed that the dispute should be arbitrated rather than litigated did not warrant that plaintiffs summons and complaint in effect be deemed a demand for arbitration, or that defendants’ motion to dismiss the action pursuant to CPLR 3211 (a) (5) in effect be deemed an application pursuant to CPLR 7502 (b) and 7503 (b) to stay an arbitration as barred by the statute of limitations.

Section 3211(a)(5) permits dismissal when an arbitration and award bars the action, but an arbitration agreement alone does not deprive the court of subject matter jurisdiction.

Thomas v. Mathieu · filed 2007-10-19(a)(5)

The order of the court below must be modified, for although arbitration and award is a ground for dismissal (CPLR 3211 [a] [5]), there was no arbitration and award in this case, and the mere existence of an arbitration agreement effective between the parties does not deprive the court of subject matter jurisdiction.

Section 3211(a)(5) permits dismissal of claims barred by a general release, including claims against agents covered by the release.

Blum v. Perlstein · filed 2008-01-22(a)(5)

Accordingly, the Supreme Court, ... should have dismissed those causes of action, as well as the remaining causes of action against the defendants, as barred by the release (see CPLR 3211 [a] [5]).

Section 3211(a)(5) does not permit dismissal of a legal malpractice claim based on a fee arbitration award when the arbitration did not decide the malpractice issues.

Mahler v. Campagna · filed 2009-03-31(a)(5)

Accordingly, the third cause of action was not subject to dismissal on grounds of arbitration and award, res judicata, and collateral estoppel.

An agreement to arbitrate does not support dismissal under CPLR 3211(a)(1) based on documentary evidence.

Curran v. Estate of Curran · filed 2011-08-16(a)(1)

“An agreement to arbitrate is not a defense to an action,” and thus, as here, it may not be the basis for a motion to dismiss a complaint based on documentary evidence (Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211, AFL-CIO v Office of Labor Relations of City of N.Y., 45 NY2d 735, 738 [1978]; see CPLR 3211 [a] [1]; Nachman v Jenelo Corp., 25 AD3d 593 [2006]; Nastasi v Nastasi, 26 AD3d 32, 40-41 [2005]; Schwartz v Schmergel, 121 AD2d 527 [1986]).

An agreement to arbitrate is not a defense to an action and cannot support a motion to dismiss under CPLR 3211(a)(1).

Carbon Capital Management, LLC v. American Express Co. · filed 2011-10-25(a)(1)

We reject Selinger’s contention that the complaint should have been dismissed pursuant to CPLR 3211 (a) (1) insofar as asserted against him because of an arbitration clause in a consulting agreement between CSG and New York Medical. As an initial matter, “[a]n agreement to arbitrate is not a defense to an action” and, thus, “it may not be the basis for a motion to dismiss” (Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211, AFL-CIO v Office of Labor Relations of City of N.Y., 45 NY2d 735, 738 [1978]; see Blatt v Sochet, 199 AD2d 451 [1993]).

A motion to dismiss based on a release must be denied when the court cannot definitively determine whether the release covers the complaint’s allegations.

Desiderio v. Geico General Insurance · filed 2013-06-05(a)(5)

Where a court cannot definitively determine whether the scope of a release was intended to cover the allegations in a complaint, a motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint must be denied (see Storman v Storman, 90 AD3d 895, 898 [2011]; Kaprall v WE: Women’s Entertainment, LLC, 74 AD3d at 1152).

CPLR 3211(a) permits dismissal of a complaint when the claims are subject to mandatory arbitration under the parties’ insurance policy.

Serrano v. Progressive Insurance Companies · filed 2014-12-24(a)

The Supreme Court should have granted the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the complaint on the ground that the plaintiffs’ causes of action were subject to mandatory arbitration.

CPLR 3211(a)(1) does not permit dismissal based solely on a valid and applicable arbitration clause when there has been no arbitration and award.

Hui v. New Clients, Inc. · filed 2015-03-11(a)(1)

Accordingly, the Supreme Court erred in granting the motion of the defendant New Clients, Inc., pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it based solely upon its determination that the arbitration clause was valid and applicable.

CPLR 3211(a)(5) permits dismissal of a cause of action resolved by arbitration and award.

Tenenbaum v. Setton · filed 2015-08-18(a)(5)

CPLR 3211 (a) (5) provides that a cause of action may be dismissed on the ground that “the cause of action may not be maintained because of arbitration and award.” The parties agree that the breach of contract cause of action was the subject of, and resolved by, the arbitration and award. Therefore, the Civil Court properly granted defendant’s motion to dismiss.

Under CPLR 3211(a)(5), whether a release unambiguously bars a claim may be decided on a motion to dismiss from the entire release without extrinsic evidence.

Salewski v. Stelan Music · filed 2017-05-04(a)(5)

“Whether the language set forth in a release unambiguously bars a particular claim is a question of law appropriately determined on a motion [to dismiss] based upon the entire release and without reference to extrinsic evidence”

An agreement to arbitrate does not entitle a defendant to dismissal under CPLR 3211(a)(1).

Piller v. Tribeca Development Group LLC · filed 2017-12-28(a)(1)

Eisner’s cross motion to dismiss based upon CPLR 3211 (a) (1), premised upon the agreement to arbitrate, does not entitle him to dismissal of this action (see Hui v New Clients, Inc., 126 AD3d at 759-760; Matter of Birchwood Vil. LP v Assessor of the City of Kingston, 94 AD3d at 1375-1376).

A court may dismiss a complaint for lack of standing even if the defendants did not specifically move under CPLR 3211(a)(3).

Plotch v. 435 E. 85th St. Tenants Corp. · filed 2020-10-22(a)(3)

Likewise, plaintiff's argument that the court should not have dismissed the complaint based on standing because defendants did not specifically move under CPLR 3211(a)(3) lacks merit ( Dean R. Pelton Co. v Moundsville Shopping Plaza , 173 AD2d 201, 201 [1st Dept 1991]).

An agreement to arbitrate is not a basis for dismissing a complaint under CPLR 3211(a)(1) or (7).

Mozzachio v. Schanzer · filed 2020-11-12(a)(1), (7)

However, the Supreme Court should not have granted those branches of the defendant's motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint. ... The Supreme Court had no authority to dismiss the amended complaint merely because the employment agreement contained a mandatory arbitration clause ( see Nachman v Jenelo Corp. , 25 AD3d 593, 593).

An agreement to arbitrate is not a ground for dismissing a complaint under CPLR 3211(a).

Wilson v. PBM, LLC · filed 2021-02-03(a)

The Supreme Court's determination to grant that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a) to dismiss the complaint was improper. "An agreement to arbitrate is not a defense to an action," and "[t]hus, it may not be the basis for a motion to dismiss" ( Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211, AFL-CIO v Office of Labor Relations of City of N.Y. , 45 NY2d 735, 738).

When a declaratory judgment action is sent to arbitration, the court may deny a CPLR 3211(a) motion to dismiss and stay the action pending arbitration.

County of Nassau v. Nassau County Sheriff's Corr. Officers Benevolent Assn., Inc. · filed 2021-03-24(a)

For the reasons set forth in County of Nassau v Detectives Assn., Inc. of the Police Dept. of Nassau County (188 AD3d 1049), we modify the order and judgment by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint, substituting therefor a provision denying that branch of the motion, by deleting the provision thereof dismissing the complaint, and by adding thereto a provision staying the action pending arbitration.

A court may deny a CPLR 3211(a) motion to dismiss and stay the action pending arbitration.

County of Nassau v. Civil Serv. Employees Assn. · filed 2021-03-24(a)

For the reasons stated in County of Nassau v Detectives Assn., Inc. of the Police Dept. of Nassau County (188 AD3d 1049), we modify the order and judgment by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint, substituting therefor a provision denying that branch of the motion, by deleting the provision thereof dismissing the complaint, and by adding thereto a provision staying the action pending arbitration.

On a motion to dismiss based on a release, the defendant must establish the release; the plaintiff may then show that it is voidable for fraud.

Cain-Henry v. Shot · filed 2021-05-07(a)(5)

Defendants met their initial burden of establishing that they were released from any claims by submitting the release executed by plaintiff ( see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V. , 17 NY3d 269, 276 [2011]). The burden thus shifted to plaintiff to show that the release was voidable based on fraud ( see id .).

A release does not warrant dismissal under CPLR 3211(a)(5) at the pleading stage when the plaintiff sufficiently alleges that it resulted from overreaching or unfair circumstances.

Chadha v. Wahedna · filed 2022-06-23(a)(5)

We find that Supreme Court improperly granted that branch of the defendants' motion, pursuant to CPLR 3211 (a) (1),(5) and (7), to dismiss the complaint as barred by the release. ... Under the alleged facts, the affirmative defense of the release does not entirely bar plaintiff's action at this stage of the litigation.

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively establishes a defense.

Dutton v. Young Men's Christian Assn. of Buffalo Niagara · filed 2022-07-01(a)(1)

Inasmuch as imposition of successor liability on the theory of de facto merger is not foreclosed as a matter of law under the circumstances of this case, the question becomes whether the documentary evidence submitted by YMCA Buffalo in support of its motion to dismiss conclusively establishes that the de facto merger exception to the general rule of successor nonliability does not apply here ( see CPLR 3211 [a] [1]). Upon our evaluation of the factors, we agree with plaintiff that the documentary evidence does not conclusively establish the inapplicability of the de facto merger doctrine ( see Shea v Salvation Army , 169 AD3d 1081, 1083 [2d Dept 2019]).

An agreement to arbitrate is not a basis to dismiss a plenary action under CPLR 3211(a)(1) or (5).

Chalom v. Areivim USA · filed 2022-08-10(a)(1), (5)

Here, the Supreme Court correctly determined that the arbitration clause was not a basis to dismiss the complaint under CPLR 3211(a)(1) or (5).

An agreement to arbitrate is not a basis for dismissal under CPLR 3211(a)(1).

Ferarro v. East Coast Dormer, Inc. · filed 2022-10-12(a)(1)

However, the Supreme Court should have denied that branch of Signature's motion which was pursuant to CPLR 3211(a)(1) to dismiss the third-party complaint based upon the arbitration agreement.

Section 3211(a)(5) permits dismissal when all claims in an action must be arbitrated under the parties' agreement.

Kanner v. Westchester Med. Group, P.L.L.C. · filed 2023-08-25(a)(5)

Westmed's motion seeking dismissal of this action pursuant to CPLR § 3211(a)(5) is granted. Significantly, under prevailing binding authority, this action must be dismissed on grounds that the parties are bound by an arbitration agreement, which requires arbitration to resolve the instant dispute.

CPLR 3211(a) does not allow dismissal merely because the parties agreed to arbitrate; dismissal relating to arbitration requires a prior arbitration and award.

Matter of Sassouni · filed 2024-02-07(a)

"[T]he only basis for a 3211 dismissal relating to arbitration is where there has already been arbitration and an award has been made in it" ( Langemyr v Campbell , 23 AD2d 371, 374 [emphasis and internal quotation marks omitted]; see Hui v New Clients, Inc. , 126 AD3d 759, 759-760). "[T]he existence of an agreement to arbitrate is not a defense to a plenary action and thus it may not be the basis for a motion to dismiss" ( Chalom v Areivim USA , 208 AD3d 552, 553 [internal quotation marks omitted]; see Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211, AFL-CIO v Office of Labor Relations of City of N.Y. , 45 NY2d 735, 738).

CPLR 3211(a)(5) permits dismissal of a claim barred by a valid release.

Treistman v. Ulster County Socy. for Prevention of Cruelty to Animals · filed 2025-02-20(a)(5)

"Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release" ( Centro Empresarial Cempresa S.A. v AmÉrica MÓvil, S.A.B. de C.V. , 17 NY3d 269, 276 [2011] [internal quotation marks and citation omitted]; see CPLR 3211 [a] [5]).

CPLR 3211(a)(7) permits pre-answer dismissal when statutory immunity bars the claim.

Grimaldi v. Mary Manning Walsh Nursing Home Co., Inc. · filed 2025-08-18(a)(7)

Second, pre-answer dismissal is appropriate when defendants are statutorily immunized from liability, since such immunity forms the basis for a CPLR 3211(a)(7) motion to dismiss the complaint (see Mera v NY City Health & Hosps. Corp., 220 AD3d at 670).

An agreement to arbitrate does not, by itself, divest the court of subject matter jurisdiction or support dismissal under CPLR 3211.

Stuver v. Greenlight Parent, L.P. · filed 2025-10-28(a)(1), (a)(2)

However, the other Appellate Divisions have determined that, under New York procedural law, the existence of an arbitration clause in the relevant agreements does not divest this Court of subject matter jurisdiction requiring dismissal of the plaintiff's complaint pursuant to CPLR Rule 3211. ... Thus, the motion to dismiss is DENIED.

To defeat a motion to dismiss for lack of personal jurisdiction, the plaintiff need only make a prima facie showing of jurisdiction, although the ultimate burden of proof remains with the plaintiff.

Shatara v. Ephraim · filed 2016-03-30(a)(8)

The Supreme Court erred in concluding that New York has jurisdiction over Ephraim and DiGiovanni & Ephraim. “Although the ultimate burden of proof regarding personal jurisdiction rests with the plaintiff, to defeat a CPLR 3211 (a) (8) motion to dismiss a complaint, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the court”

When conflicting affidavits dispute whether a person was authorized to accept service for a limited liability company, a motion to dismiss for lack of personal jurisdiction requires a traverse hearing.

Cruz-Guzman v. 2380-2386 Grand Ave, LLC · filed 2016-03-24(a)(8)

A traverse hearing is warranted in light of the parties’ conflicting affidavits as to whether the individual served with the summons and complaint pursuant to CPLR 311-a was authorized to accept service on behalf of defendant limited liability company (see Dunn v Pallett, 42 AD3d 807, 808-809 [3d Dept 2007]).

On a motion to dismiss under CPLR 3211(a)(8), the plaintiff bears the burden of showing jurisdiction.

Wang v. LSUC · filed 2016-03-10(a)(8)

As determined by the lower court, plaintiff, who bears the burden of showing jurisdiction upon a motion to dismiss pursuant to CPLR 3211 (a) (8), failed to demonstrate that the defendants transacted significant business in New York, and to the extent that any business was transacted, plaintiff failed to demonstrate any connection to the claims asserted in this case (CPLR 302 [a]; O’Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 200 [1st Dept 2003]; Paterno v Laser Spine Inst., 24 NY3d 370, 376 [2014]).

A motion to dismiss for lack of personal jurisdiction may be made before the answer is due.

Matter of Crichlow v. NYS Off. of Mental Health · filed 2016-02-11(a)(8), (e)

Respondents did not concede to the court’s jurisdiction by seeking an adjournment, and the cross motion to dismiss the petition on jurisdictional grounds was properly brought prior to the time that the answer was required to be served (see CPLR 3211 [a] [8]; [e]; see also CPLR 320 [b]).

On a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8), the plaintiff need only make a prima facie showing that the defendant is subject to the court’s jurisdiction.

Weitz v. Weitz · filed 2011-06-28(a)(8)

In opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), the plaintiff need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the court (see Comely v Dynamic HVAC Supply, LLC, 44 AD3d 986 [2007]).

CPLR 3211 (e) does not require a defendant to move when the jurisdictional defect concerns commencement of the action rather than service of process.

Giaquinto v. Long Island Rubbish Removal Eastern Corp. · filed 2011-05-02(e)

Moreover, since the jurisdictional defect relates to commencement of the action and not to service of process, the defendant had no obligation to move pursuant to CPLR 3211 (e) (id. at 772; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:ll).

A CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction may be denied without a hearing when the defendant does not specifically rebut the process server’s account of service.

Tikvah Enterprises, LLC v. Neuman · filed 2011-01-25(a)(8)

Moreover, the Supreme Court properly denied, without a hearing, the defendant’s motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. ... Here, the defendant never denied the specific facts contained in the process server’s affidavits.

CPLR 3211(a)(8) permits dismissal when a plaintiff fails to serve the defendant and an extension of time to serve is denied.

Braxton v. McMillan · filed 2010-08-17(a)(8)

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant’s motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him and in granting the plaintiffs’ cross motion pursuant to CPLR 306-b to extend their time to serve the appellant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]). The plaintiffs failed to exercise due diligence in attempting to serve the summons and complaint upon the appellant within 120 days, and they did not seek an extension of time to serve the appellant until more than a year after the summons and complaint were filed, after a motion to dismiss had been brought by the appellant (see Varon v Maimonides Med. Ctr., 67 AD3d 779, 779-780 [2009]; Shea v Bloomberg, L.P., 65 AD3d 579, 580 [2009]; Garcia v Simonovsky, 62 AD3d 655, 656 [2009]).

CPLR 3211(a)(8) permits dismissal of a complaint when the defendants were not properly served.

Richards v. County of Westchester · filed 2001-03-05(a)(8)

The Supreme Court properly dismissed the complaint pursuant to CPLR 3211 (a) (8) for failure to properly serve the defendants.

Section 3211(c) permits discovery on personal jurisdiction and service of process before a dismissal motion is renewed when the jurisdictional facts warrant further inquiry.

Napolitano v. Mastic Bicycles & Fitness Co. · filed 2001-01-08(c)

Thus, Bell is entitled to discovery on the issue of personal jurisdiction and service of process with leave to Kinesis to renew its motion to dismiss upon the completion of discovery.

A motion to dismiss for improper service under CPLR 3211(a)(8) is premature while the plaintiff still has time to effect valid service.

Gelbard v. Northfield Savings Bank · filed 1995-06-05(a)(8)

The defendant’s motion, to the extent that it can be characterized as one to dismiss the plaintiff’s action based on improper service (see, CPLR 3211 [a] [8]), was premature.

On a motion to dismiss under CPLR 3211(a)(8), the plaintiff bears the burden of establishing proper service of process.

Practice Management Associates, Inc. v. Bambara · filed 1994-10-31(a)(8)

We accordingly conclude that the court’s determination discrediting the witness’s testimony and finding that the plaintiff had not met its burden of establishing the propriety of service of process should not be disturbed (see, Matter of Murdock v Murdock, 183 AD2d 769).

CPLR 3211(a)(8) provides a motion to dismiss for lack of personal jurisdiction; a party that instead appears and defends on the merits waives that defense.

Woicik v. Town of East Hampton · filed 1994-08-01(a)(8)

The Town Board failed to move to dismiss the action for lack of personal jurisdiction pursuant to CPLR 3211 (8). Rather, they appeared and defended on the merits. As such, the defense is waived (see, CPLR 320 [b]).

CPLR 3211(e) makes an objection to personal jurisdiction waivable, so a party may raise it only on his or her own behalf.

In re the Guardianship of Staiano · filed 1994-03-09(e)

The answer to the question of whether the petitioners, Kathleen Staiano and Joel Ulino, have standing to object to the manner of service of the cross petition on the alleged incapacitated person, Josephine D. Staiano, seems plainly to be that a party may object to personal jurisdiction, only on behalf of himself or herself, since the objection may be waived.

A party who moves to dismiss under CPLR 3211 without raising a personal jurisdiction objection waives that defense, even if it was raised in the answer.

In re the Estate of Kaplan · filed 1994-02-28(e)

Accordingly, by electing to make the CPLR 3211 motion to dismiss and failing to include therein the jurisdictional objection, the appellant conferred jurisdiction over her person upon the Surrogate’s Court and waived the jurisdictional defense set forth in the answer (see, Addesso v Shemtob, 70 NY2d 689; Gelstein v Lieberman, 182 AD2d 487; DeFilippis v Perez, 148 AD2d 490; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:59, at 80).

On a motion to dismiss for lack of personal jurisdiction, sharply conflicting affidavits about jurisdiction require a hearing.

Shea v. Hambro America Inc. · filed 1994-01-06(a)(8)

Finally, the IAS Court did not err in directing a reference as to whether the complaint should be dismissed as against defendant Hambros PLC, the parent company of defendant Hambro America Incorporated and a holding company organized under the laws of the United Kingdom, for lack of jurisdiction, because the sharply conflicting affidavits submitted by the parties with respect to whether Hambros PLC is subject to long-arm jurisdiction pursuant to CPLR 302 (a) (1) for "doing business” in New York (see, Frummer v Hilton Hotels Intl., 19 NY2d 533) and whether the parent-subsidiary relationship between Hambros PLC and Hambro America Incorporated was sufficient to establish personal jurisdiction over the foreign parent (see, Taca Intl. Airlines v Rolls-Royce of England, 15 NY2d 97), required a jurisdictional hearing (see, Cato Show Print. Co. v Lee, 84 AD2d 947, 949).

Section 3211(e) treats a defendant’s answer that omits a personal jurisdiction objection as a waiver of that objection.

Allen v. Blum · filed 1993-08-23(e)

Although service was never properly made on Dr. Blum as an individual, he answered the complaint without raising a jurisdictional objection and thus waived any objection to lack of personal jurisdiction (see, CPLR 3211 [a] [8]; [e]; Naccarato v Kot, 124 AD2d 365).

Section 3211(e) waives a personal jurisdiction objection if it is raised in neither an appropriate preanswer motion nor the answer.

Tung Fa Tu v. Barn Trailer Service, Inc. · filed 1993-09-13(e)

Having failed to make an appropriate preanswer motion, or raise the issue in its answers to the third-party complaints, Malerba’s Silver City Tire Company has waived its claim that there was no jurisdiction under either CPLR 301 or 302 (see, CPLR 3211 [e]; Gager v White, 53 NY2d 475, cert denied sub nom. Guertin Co. v Cachat, 454 US 1086; Hatch v Tu Thi Tran, 170 AD2d 649; Boswell v Jiminy Peak, 94 AD2d 782).

A defendant does not waive a personal jurisdiction objection by asserting other defenses in the answer, even if those defenses concern the merits.

Kukoda v. Schneider · filed 1963-12-30(e)

This objection, however, is no longer waived because a defendant asserts other objections or defenses in his motion or, as in the case at bar, in his answer, notwithstanding that such objections or defenses go to the merits of the action.

Section 3211(e) allows a defendant to preserve an objection to personal jurisdiction by raising it in the answer after appearing.

Renwal Products, Inc. v. Kleen-Stik Products, Inc. · filed 1964-06-24(e)

Read that way 320 (subd. [b]) and the quoted portion of 3211 (subd. [e]) are consistent in allowing objection to jurisdiction to be made either by motion or in the answer.

Section 3211(a)(8) permits a defendant to move to dismiss for lack of personal jurisdiction.

Glendon v. Glendon · filed 1964-11-12(a)(8)

The CPLR does not provide for special appearances and under 3211 (subd. [a], par. 8) the defendant may move to dismiss for lack of jurisdiction of her person.

A motion to dismiss for lack of personal jurisdiction under § 3211(a)(8), where jurisdiction is asserted under CPLR 302, cannot be properly decided without knowing the nature of the plaintiff’s cause of action.

Fraley v. Desilu Productions, Inc. · filed 1965-04-13(a)(8)

However, any proper determination of a motion under CPLR 3211 (subd. [a], par. 8) based on a claim of lack of jurisdiction attempted to be exercised under CPLR 302, must depend upon the nature of the cause or causes of action relied on by a plaintiff.

A timely motion under CPLR 3211(a)(8) preserves a personal jurisdiction objection despite an earlier notice to examine the plaintiff before trial.

Mittelman v. Mittelman · filed 1965-03-04(a)(8)

By the application of section 20 of the General Construction Law, the defendant’s thirty days expired on October 14,1964 by which date he could serve his answer or make the motion under CPLR 3211 (subd. [a], par. 8) challenging the court’s jurisdiction of his person. He made such motion on October 13,1964 (CPLR 2211). Consequently, the jurisdictional objection was not waived by the prior service of a notice to examine the plaintiff before trial.

Section 3211(e) preserves a personal jurisdiction defense raised in the answer, even when the defendant previously appeared without objecting.

Balassa v. Benteler-Werke A. G. · filed 1965-03-08(e)

When so read, CPLR 320 (suhd. [b]) is consistent with CPLR 3211 (suhd. [e]) which, so far as pertinent, now (as then) provides: “At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in subdivision (a) is waived unless raised either by such motion or in the responsive pleading”.

Section 3211 permits a defendant to raise multiple dismissal grounds in one motion without waiving a lack-of-personal-jurisdiction defense by also addressing the merits.

Rene Boas & Associates v. Vernier · filed 1965-03-23(e)

Under the CPLR, the fact that defendant may have raised, in his reply affidavit, an issue relating to the merits is not a waiver of the defense of lack of personal jurisdiction. Indeed, the CPLR contemplates that the same motion under CPLR 3211 (subd. [a]) may be based on all of the grounds therein set forth (CPLR 3211, subd. [e]).

Section 3211(a)(2) and (8) provide a way to contest subject-matter and personal jurisdiction, respectively.

Lownes v. Family Court · filed 1965-06-29(a)(2), (a)(8)

Initially, petitioner had an adequate remedy to contest the separable issues of jurisdiction over the subject matter and over his person dependent upon the single fact of residence in the county and State, pursuant to CPLR 3211(a)(2) and (8) (cf. CPLR 308, subd. 3; 320, subd. [b].

CPLR 3211(e) waives an objection to personal jurisdiction unless the defendant raises it before serving a responsive pleading or includes it as a defense in that pleading.

Casden v. Broadlake Corp. · filed 1965-08-31(e)

CPLR 3211 (subd. [e]) requires that an objection based upon paragraph 8 of subdivision (a) shall be made by motion before service of the responsive pleading or may be contained as a defense in the pleading, and if it is not so raised the objection or the defense is waived.

On a motion to dismiss for lack of personal jurisdiction, an affidavit showing jurisdictional facts can suffice even when the complaint does not allege them.

Sharp Export, Ltd. v. Mulco Products, Inc. · filed 1966-04-04(a)(8)

Defendant corporation moves for an order dismissing the complaint on the ground that this court has no jurisdiction of the defendant (CPLR 3211, subd. [a], par. 8). ... I hold that ... plaintiff’s affidavit showing jurisdictional facts, although not alleged in the complaint, is sufficient (Schnall v. Clearfield Cheese Co., 23 A D 2d 652).

On a motion to dismiss for lack of personal jurisdiction, the complaint’s allegations are assumed true; ultimate liability is left for trial.

Saratoga Harness Racing Ass'n v. Moss · filed 1966-03-31(a)(8)

For the purpose of this motion, the allegations of the complaint must be assumed to be true, and the question of ultimate liability is to be determined only after a trial and has no bearing on the question of whether the defendants are subject to in personam jurisdiction (Longines-Wittnauer v. Barnes & Reinecke, 15 N Y 2d 443, 460).

CPLR 3211(a)(8) permits dismissal of a complaint when the court lacks personal jurisdiction over the defendant.

Roseland v. National Transportation Co. · filed 1966-12-30(a)(8)

The defendant moves to vacate service of the summons and complaint on the ground that this court has obtained no jurisdiction over it by the service of process so made (CPLR 3211, subd. [a], par. 8). ... These .conclusions require that the motion be granted. It is granted and the complaint is dismissed pursuant to CPLR 3211 (subd. [a], par. 8).

A defendant loses an objection to personal jurisdiction only by failing to comply with CPLR 3211.

Coleman Capital Corp. v. Trans Urban Construction Co. · filed 1967-03-27

An objection to personal jurisdiction can only be lost by failing to comply with CPLR 3211.

Section 3211(d) permits disclosure to obtain evidence about personal jurisdiction, even before a motion to dismiss is filed.

Cronin v. New England Storage Warehouse Co. · filed 1967-08-04(d)

While such a motion is not pending, nevertheless, if brought, the court would be empowered to “ order a continuance to permit * * * disclosure to be had * * * ” (CPLR 3211, subd. [d]; cf. CPLR 3212, subd. [f], as applying to motions for summary judgment). ... The remedy being available on a motion attacking jurisdiction of defendant’s person, it is available in the present posture of this action or at any appropriate stage thereof.

CPLR 3211(a)(9) authorizes dismissal for lack of jurisdiction when service is made under CPLR 314.

Alex v. Grande · filed 1967-12-29(a)(9)

The CPLR 3211 (subd. [a], par. 9) specifically authorizes the granting of a motion to dismiss if the court does not have jurisdiction when service is made under CPLR 314.

Section 3211 permits a defendant to challenge service of process by motion.

Terry Contracting, Inc. v. Tufano Contracting Corp. · filed 1968-02-15

Defendant may have raised the question by way of motion (CPLR 3211) or, as it did, by answer. Having elected to make the question an issue in the case, it should be disposed of on the trial.

An insufficient factual record on a motion to dismiss for lack of personal jurisdiction warrants a hearing before the motion is determined.

Henlopen Manufacturing Co. v. Carlson Tool & Machine Co. · filed 1968-07-15(a)(8)

In our opinion the record presents an insufficient factual basis for determination of respondent’s motion to dismiss the complaint on the ground that the court has not jurisdiction of its person (cf. CPLR 3211, subd. [a], par. 8).

Section 3211(d) permits a jurisdictional deposition when facts conferring jurisdiction may exist but the plaintiff cannot state them from knowledge.

Sucrest Corp. v. Fisher Governor Co. · filed 1969-04-10(d)

Plaintiff moved to take defendant’s deposition pursuant to CPLR 3211. Before such a deposition may be ordered it must be showtn that facts may exist which would confer jurisdiction but that plaintiff is unable to state them as of knowledge (see Practice Commentary, CPLR 3211, subd. [d], McKinney’s Cons. Laws of N. Y., Book 7B; Smith v. Aztec Resort Motel, 21 Misc 2d 548). The record reveals sufficient to allow examination on the issue of whether service on the person served conferred jurisdiction.

Section 3211(d) requires disclosure before a jurisdictional dismissal motion is decided when the plaintiff is entitled to an opportunity to show facts establishing jurisdiction.

Potter Real Estate Co. v. O & S Bearing & Mfg. Co. · filed 1969-06-27(d)

The court should not have considered the motion to dismiss for lack of jurisdiction until the plaintiff was permitted disclosure pursuant to CPLR 3211 (subd. [d]).

A defendant who moves to dismiss for lack of personal jurisdiction under § 3211(a)(8) does not confer personal jurisdiction by serving a notice of appearance.

Foster v. McMorran · filed 1970-01-15(a)(8)

Inasmuch as the summons was not served on appellant and appellant moved for judgment dismissing the causes of action alleged in the complaint pursuant to CPLR 3211 (subd. a, par. 8) the court did not acquire jurisdiction of his person by service of the notice of appearance in his behalf.

On a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8), the plaintiff must provide definite evidentiary facts supporting jurisdiction when the defendant challenges it.

Lamarr v. Klein · filed 1970-11-19(a)(8)

The defendant has moved, prior to his answer, to dismiss the complaint under CPLR 3211 (subd. [a], par. 8), on the ground that the court has not jurisdiction of the person of the defendant. ... In the face of these allegations, the plaintiff was duty bound to come forth with definite evidentiary facts to meet -the objections of the defendant and to support the propriety of the service made upon him outside of this State.

Section 3211(d) permits disclosure of material evidence needed to resolve jurisdictional questions raised by a motion to dismiss.

Propulsion Systems, Inc. v. Avondale Shipyards, Inc. · filed 1971-10-15(d)

It is patent that plaintiff is entitled to a disclosure of such record's and other evidence which are material, necessary and relevant to a determination of the jurisdictional questions directed to he resolved by the Special Referee. (CPLR 3102, 3211, subd. [d].)

Section 3211(d) permits discovery to help a party sustain or oppose a defense of lack of jurisdiction.

Peterson v. Spartan Industries, Inc. · filed 1972-11-28(d)

Special Term’s denial of defendant’s motion for a protective order vacating the notice for discovery and inspection was proper. CPLR 3211 (subd. [d]) permits discovery proceedings to enable a party to sustain or oppose the defense of lack of jurisdiction.

Section 3211(c) permits an immediate hearing on disputed facts concerning personal jurisdiction when deciding a motion to dismiss.

Darienzo v. Selbern Shoe Co. · filed 1973-03-05(c)

It is our opinion that in such a situation it is preferable to order an immediate hearing on the factual questions, pursuant to CPLR 3211 (subd. [c]), rather than await the trial for determination thereof.

CPLR 3211(c) permits an immediate trial of substantial jurisdictional issues raised on a motion to dismiss.

Usher v. Usher · filed 1973-05-03(c)

The order should be modified, on the law and the facts, by remitting the matter to-Special Term for an immediate trial pursuant to CPLR 3211 (subd. [c]) of the issues raised under paragraphs 2 and 8 of subdivision (a) of CPLR 3211, and, except as so módified and as to the other alleged grounds for dismissal, order affirmed, without costs.

A defendant may raise a personal-jurisdiction objection in an answer without first making a CPLR 3211(a)(8) motion, even when asserting a third-party claim.

Italian Colony Restaurant, Inc. v. Wershals · filed 1974-07-01(a)(8)

It is surely the better practice to raise and resolve such jurisdictional objections by way of a motion under CPLR 3211 (subd. [a], par. 8). However, to force a defendant, wishing .to assert a third-party' claim and properly raising the jurisdictional objection in his answer (CPLR 320, subd. [b]), to first resolve this issue by himself bringing on an appropriate motion would nullify his very right to proceed by way of answer instead of motion (see Practice Commentary by Professor David D. Siegel, McKinney’s Cons. Laws of N. Y. Book 7B, CPLR 3211, p. 64; Katz & Son Billiard Prods. v. Correale & Sons, 26 A D 2d 52, affd. 20 N Y 2d 903).

Section 3211(d) permits jurisdictional discovery when facts that could defeat a motion to dismiss may exist; the opposing party need not first make a prima facie showing of jurisdiction.

Peterson v. Spartan Industries, Inc. · filed 1974-03-28(d)

Plaintiffs have demonstrated that facts “ may exist ” in opposition to the motion to dismiss and are therefore entitled to the disclosure expressly sanctioned by OPLR 3211 (subd. [d]).

Section 3211(d) allows a court to deny a motion to dismiss when facts needed to establish jurisdiction are within the defendant’s control and may be obtained through discovery.

Tonelli v. Chase Manhattan Bank · filed 1975-09-25(d)

While plaintiff has not completely satisfied the requirements of CPLR 302 (subd [a], par 3, cl [ii]) to the extent that there is no proof that Totowa "derives substantial revenue from interstate or international commerce”, that knowledge is peculiarly under the control of Totowa, and the failure of the plaintiff to come forward with substantial proof at this time should not mean that defendant must prevail on the motion. Subsequent discovery will surely cure this flaw (CPLR 3211, subd [d]).

CPLR 3211(e) treats a personal jurisdiction objection as waived when a defendant voluntarily appears, answers, and opposes a motion without raising it.

Dutchess Bank & Trust Co. v. Holden Construction Co. · filed 1975-10-14(e)

Appellant, by voluntarily appearing, filing an answer and serving papers opposing plaintiff’s motion for summary judgment in lieu of a complaint, without asserting a claim that the court lacked jurisdiction over his person, waived any objection he had on that ground (CPLR 3211, subd [e]; Matter of Rizika v Board of Assessors of Vil. of Herkimer, 62 Misc 2d 774).

On a motion to dismiss for lack of jurisdiction, plaintiffs should have an opportunity to present evidence of the defendant’s agent’s authority when jurisdiction depends on that authority.

Middletown Plaza Associates v. United Surety & Financial Guarantee Co. · filed 1976-01-26(a)(8)

Order reversed, on the law, with $50 costs and disbursements, and motion remanded to Special Term for a hearing and a new determination on the issue of jurisdiction. ... Plaintiffs should be given the opportunity to present evidence, if they can, to establish that the agent who issued the bonds to the subcontractor, Bernard H. Steinke, Inc., had actual or apparent authority to do so.

Section 3211(d) permits discovery before dismissal when defendants control facts decisive of the claim.

Penato v. George · filed 1976-05-24(d)

Under the circumstances defendants are in control and possession of the facts which are decisive of this question and discovery should be permitted (see CPLR 3211, subd [d]; Charles Abel, Ltd. v School Pictures, 40 AD2d 944).

On a motion to dismiss for lack of personal jurisdiction, a court may require an evidentiary hearing when the showing warrants one rather than dismissing on affidavits.

American Museum of Natural History v. G. Carbonara & Co. · filed 1976-11-16(a)(8)

Order, Supreme Court, New York County, entered March 19, 1976, granting defendant’s motion pursuant to CPLR 3211 (subd [a], par 8) to dismiss the complaint for lack of jurisdiction of the person, is unanimously reversed, on the law and the facts and in the exercise of discretion, without costs and without disbursements, and the matter is remanded for a hearing as to whether the court has jurisdiction of the person of the defendant, with appropriate disclosure procedures in aid thereof if necessary. In this action for a declaratory judgment to declare a certain contract between plaintiff and defendant null and void, enough has been shown to warrant an evidentiary hearing on the issue of jurisdiction of the person rather than dismissal on affidavits on that ground.

On a motion to dismiss for lack of personal jurisdiction, the party asserting jurisdiction must prove it by a preponderance of the evidence.

Jacobs v. Zurich Insurance · filed 1976-06-08(a)(8)

The burden of proving jurisdiction is upon the party asserting it and when challenged on jurisdiction, such party must sustain that burden by preponderating proof (Saratoga Harness Racing Assn. v Moss, 26 AD2d 486, 490, affd 20 NY2d 733). Patently, on this record plaintiff failed to sustain his burden of proof.

CPLR 3211(d) permits disclosure to oppose a motion to dismiss for lack of personal jurisdiction when jurisdictional facts may exist; a prima facie showing of jurisdiction is not required.

Gold Bullion International v. General Mills, Inc. · filed 1976-07-12(d)

Since the Court of Appeals has held that when plaintiffs have demonstrated that facts "may exist” in opposition to the motion to dismiss, they are entitled to every reasonable doubt in determining whether the allegation of jurisdiction is sufficient to warrant further inquiry; plaintiff is also entitled to the disclosure expressly sanctioned by CPLR 3211 (subd [d]). A prima facie showing of jurisdiction is not required.

CPLR 3211(e) does not treat counsel’s participation solely to contest jurisdiction as a waiver of a personal-service objection.

Miranda v. Erie County Board of Elections · filed 1977-09-16(e)

The participation of their attorneys to contest jurisdiction did not constitute a waiver of the requirement that they be personally served.

An inartfully pleaded objection to in rem or quasi-in-rem jurisdiction under section 3211(a)(9) can remain preserved.

Attanasio v. Ferre · filed 1977-10-28(a)(9)

While defendant Ferre’s objection to in rem or quasi-in rem jurisdiction (CPLR 3211, subd [a], par 9) is somewhat inartfully pleaded, the court construes the objection as not waived.

CPLR 3211(c) allows a hearing on a disputed jurisdictional fact before trial on the remaining issues.

Lax v. Lax · filed 1977-10-13(c)

A hearing is required on that issue. If defendant succeeds at the hearing, which should be brief, that would obviate the lengthy trial relating to the issues of fault and finances (CPLR 3211, subd [c]; Kahn v Kahn, 46 AD2d 638; Hammond v Hammond, 9 AD2d 615).

Section 3211 treats an objection to personal jurisdiction as waived when a defendant neither moves to dismiss nor raises the objection in an answer.

Escudero Construction Inc. v. Huck · filed 1977-12-16(e)

The Legislature, pursuant to its adoption of the CPLR 3211, has enacted that where a defendant fails to move to dismiss pursuant to said rule, or to raise the objection in his answer, he has waived such jurisdictional defect.

Section 3211(e) bars a defendant who appears voluntarily and fails to object to personal jurisdiction in the answer from raising that defense later.

Roseman v. Jean a. Mcavoy · filed 1978-02-09(e)

However, the defendants appeared voluntarily and failed to object to jurisdiction in their answer. This precludes them from raising such a defense at this time.

Section 3211(d) permits discovery limited to personal jurisdiction before a motion to dismiss is decided when the plaintiff’s jurisdictional position is not frivolous.

International Vitamin Corp. v. American Medicinal Corp. · filed 1978-02-21(d)

We believe that the defendants’ motion to dismiss the complaint and the plaintiffs motion for leave to serve an amended complaint should not have been decided without first allowing discovery by the plaintiff, limited to matters which are reasonably related to the issue of personal jurisdiction. The plaintiff has sufficiently shown that its position is not frivolous (see Peterson v Spartan Ind., 33 NY2d 463; CPLR 3211, subd [d]).

CPLR 3211(d) permits a court to continue a motion to dismiss for lack of personal jurisdiction while the plaintiff conducts jurisdictional discovery and a referee hears and reports on the issue.

Lederer v. Davis · filed 1978-05-04(d)

We find that it was proper for the court to grant a continuance of the CPLR 3211 (subd [a], par 8) motion pending discovery proceedings (CPLR 3211, subd [d]) by plaintiff and hearing and report by referee (Peterson v Spartan Ind., 33 NY2d 463; see, also, Amigo Foods Corp. v Marine Midland Bank-N. Y., 39 NY2d 391).

A defendant waives a personal-jurisdiction objection by answering without asserting it.

Manfrida v. City of New Rochelle · filed 1978-05-22(e)

We hold that when defendant Malone made the present motion he had already waived any objection he had on the ground that the court lacked personal jurisdiction. By filing an answer without asserting a claim that the court lacked jurisdiction over his person, he relinquished his right to proceed under CPLR 3211 (subd [a], par 8).

A stipulation extending time to answer does not waive a CPLR 3211(a)(8) personal jurisdiction objection, even if the stipulation constitutes an appearance.

Becker v. Lesnick · filed 1978-07-14(a)(8)

Therefore, the stipulations to extend the time to answer, even if they be an "appearance” under CPLR 320, do not constitute a waiver of defendant’s CPLR 3211 (subd [a], par 8) objection because defendant is now permitted to interpose this jurisdictional defense in his answer although not asserted as a defense at the time of appearance.

Section 3211(e) waives a personal jurisdiction objection when a defendant answers without raising it or fails to move before answering.

Wager v. Tread Mill, Inc. · filed 1978-07-28(e)

However, even a defect which voids personal jurisdiction can be waived if the defendant fails to object by motion prior to his answer or appears by way of answer without objecting to the defect. (CPLR 320, subd [b]; 3211, subd [e].) ... This court must conclude the defendants herein have waived their objections to the lack of personal jurisdiction by failing to meet the requirement of CPLR 3211 (subd [e]).

A jurisdiction defense raised in the answer is not waived by counterclaims and cross claims arising from the same transaction when no new parties are joined.

Majique Fashions Ltd. v. Warwick & Co. · filed 1978-07-26

As to the second point, Warwick properly raised the defenses of lack of jurisdiction as an affirmative defense in its answer. This defense was not waived by interposing counterclaims and cross claims in the answer since no new parties were joined and all such counterclaims and cross claims asserted by this defendant arose out of the same transaction as that sued upon by the plaintiff.

Section 3211(d) permits a court to preserve a potentially viable personal jurisdiction objection for trial when the motion papers are inadequate to decide it.

Small v. Small · filed 1978-10-05(d)

As in other CPLR 3211 cases, therefore, the inadequacy of the motion papers to sustain an otherwise viable contention does not necessarily require an adverse determination of the issue on the merits but may permit the issue to be preserved for trial (cf. CPLR 3211, subd [d]).

Section 3211(e) waives objections under paragraphs (a)(8) or (a)(9) when they are not raised in the responsive pleading.

Walden v. Thagard · filed 1979-02-20(e)

In our opinion the objection raised by defendant on this motion (that "no jurisdiction at all is acquired even in rem unless the Order of Attachment is served before service of the summons and complaint”) was a matter "which if not pleaded would be likely to take the adverse party by surprise”, yet it was not set forth in defendant’s answer. The affirmative defense actually pleaded did not fairly apprise plaintiff of the objections now made. Accordingly, we deem the objections now made to have been waived by defendant.

Section 3211(e) treats an objection as waived when the party fails to raise it in a motion to dismiss or answer.

Ladore v. Mayor and Board of Trustees · filed 1979-05-09(e)

Since appellants did not notify petitioner as to the lack of verification until they had served their answers, and did not raise such defect in their motions to dismiss, which were based upon the lack of personal jurisdiction, this objection has been waived (see CPLR 3211, subd [e]; Matter of O’Neil v Kasler, supra).

A defendant waives an objection to personal jurisdiction by failing to move to dismiss for lack of personal jurisdiction or raise the objection in the answer.

Katz v. Katz · filed 1979-06-25(e)

No motion was made to dismiss for lack of personal jurisdiction and the defendant’s answer failed to raise any jurisdictional objection. Accordingly, the Supreme Court had jurisdiction over defendant’s person (see CPLR 3211, subd [e]).

Section 3211(e) preserves a personal jurisdiction objection raised in the answer even if the defendant participates in defending the action.

Chemical Bank v. Cakepan, Inc. · filed 1979-10-18(e)

As his answer contained a defense of lack of personal jurisdiction over him, that objection was preserved notwithstanding participation in the defense of the action (CPLR 3211, subd [e]).

Section 3211(e) requires a lack of personal jurisdiction defense to be raised by motion or in a responsive pleading, or it is waived.

Pober v. Boulevard Hospital · filed 1979-10-29(e)

Admittedly, their claims of lack of in personam jurisdiction were untimely and improperly raised (see CPLR 3211, subd [e]).

CPLR 3211(a)(8) objections to personal jurisdiction are waived if not raised by motion or in the responsive pleading, while a subject matter jurisdiction objection under paragraph (a)(2) may be raised at any time or in a later pleading.

Copeland v. Salomon · filed 1980-03-24(a)(2), (a)(8), (e)

It is the court’s opinion that it can presently summarily dispose of one issue, that is as to "jurisdiction over the person of defendant” under CPLR 3211 (subd [a], par 8) since the rule afore-mentioned provides that "objection based upon a ground specified in paragraph * * * eight * * * of subdivision (a) is waived if a party * * * having made no objection under subdivision (a), he does not raise such objection in the responsive pleading.” (CPLR 3211, subd [e].) Here, no previous objection under the above rule (CPLR 3211, subd [a], par 8) was made, nor was it raised or included in his response or pleading. What is more, CPLR 320 (subd [b]) specifically and unequivocally provides that, "an appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under paragraph eight of subdivision (a) of rule 3211 is asserted by motion or in the answer as provided in rule 3211.” Neither procedure was followed by the defendant in this action, and the objection as to "in personam” jurisdiction must be deemed to have been waived. ... The issue then must resolve itself as to whether the alleged defect in jurisdiction, if any, is one going to the "subject matter of the action” under CPLR 3211 (subd [a], par 2), which, the statute provides, may be raised at any time or in a later pleading (CPLR 3211, subd [e]).

Section 3211(e) limits when and how a party may raise jurisdictional objections and does not waive an objection based on facts arising after the answer.

Rich v. Rich · filed 1980-04-03(e)

The statutory scheme for accelerated judgment contained in the CPLR provides for motions to dismiss for enumerated grounds prior to joinder of issue (CPLR 3211) and for motions for summary judgment after such joinder (CPLR 3212). CPLR 3211 (subd [a], par 9) authorizes a dismissal motion for lack of jurisdiction where service was made under CPLR 314. CPLR 3211 (subd [e]) authorizes a dismissal motion on one or more of the grounds contained in subdivision (a) at any time before service of a responsive pleading is required, and further prescribes that no more than one such motion shall be permitted. ... This claim must be rejected upon a number of grounds. ... In the instant case, there cannot be found a valid and meaningful waiver. ... To deem a waiver to take place based upon the failure to include a defense in an answer where the very facts upon which the defense is based did not arise until after service of the answer, would be more than an absurdity; it would raise serious questions of due process of law.

Section 3211(e) requires a defendant to raise lack of jurisdiction by motion before pleading or specifically in an answer, or the defense is waived.

Ranz v. Sposato · filed 1980-04-21(e)

Upon the basis thereof, this court will hold the defendant to technical compliance with the provisions of CPLR 3211 (subd [e]). It finds that the defense has been waived due to failure to preserve it in motion or pleading.

Section 3211 permits a respondent to move to dismiss before answering, including for lack of personal jurisdiction, and the motion does not itself constitute an appearance that confers personal jurisdiction.

Anonymous v. Anonymous · filed 1980-05-30(a)(8)

CPLR 3211 permits a motion by respondent to dismiss before the filing of an answer. In that motion, dismissal may be sought under CPLR 3211 (subd [a], par 5) on the grounds that the cause of action may not be maintained because of the Statute of Limitations, or pursuant to CPLR 3211 (subd [a], par 8) because the court has no jurisdiction of the person of the respondent. Respondent has so moved. ... This respondent having objected to jurisdiction under CPLR 3211 (subd [a], par 8), CPLR 320 provides that the motion need not be considered an appearance sufficient to confer personal jurisdiction. This enables the court to determine questions of jurisdiction over the person before it is required to determine any issue reaching the merits of the case, and avoids problems of res judicata that might otherwise arise. ... On reargument, the petition is dismissed, without prejudice, for lack of jurisdiction. (CPLR 3211, subd [a], par 8.) There is now no necessity for a hearing on the question of respondent’s residence, the statute having been construed to bar exercise of long-arm jurisdiction in a paternity proceeding prior to a fact finding on the issue of filiation.

CPLR 3211(e) generally precludes a jurisdictional defense omitted from a responsive pleading, but permits the defense by timely motion in this summary proceeding.

Lipman v. Salsberg · filed 1980-10-28(e)

When, as here, an oral pro se answer is filed with the clerk pursuant to the special provisions of the RPAPL 732 and the question of jurisdiction is otherwise properly raised by motion returnable on the first day the case is on the calendar, the court finds that a jurisdictional issue may be so raised in a summary proceeding. ... Under these circumstances, the court holds that the jurisdictional issue has been properly raised.

Under CPLR 3211(c), the court may hold a jurisdiction based motion to dismiss in abeyance and try the disputed jurisdictional fact immediately, while CPLR 3211(d) permits related disclosure.

Pamela P. v. Ray J. · filed 1980-11-03(a)(8), (c), and (d)

Where, as here, the challenge is to the court’s competence to decide the matter, an immediate trial on that limited issue is appropriate. (CPLR 3211, subd [c]; ...). ... A favorable ruling on respondent’s motion pursuant to CPLR 3211 (subd [a], par 8) will not be on the merits and will not enjoy res judicata effect, as would have been the result in Margaret B. ... Accordingly, disclosure in advance of the hearing on the jurisdictional issue is directed pursuant to CPLR 3211 (subd [d]). (Cronin v New England Stor. Warehouse Co., 54 Misc 2d 1088.)

CPLR 3211(e) requires a defendant to include a jurisdictional objection in a motion under the section or waive the objection.

Competello v. Giordano · filed 1980-11-11(e)

Defendant waived the affirmative defense of lack of personal jurisdiction by making a motion under CPLR 3211 (subd [a], par 7) without including his jurisdictional objection (CPLR 3211, subd [e]).

Section 3211(d) permits discovery to determine whether a defendant is subject to personal jurisdiction.

Argonaut Insurance v. Occidental Petroleum Corp. · filed 1980-07-28(d)

This can only be accomplished through a discovery procedure as provided for in CPLR 3211 (subd [d]).

Section 3211(e) waives a personal jurisdiction objection when a defendant fails to raise it by motion or in the answer.

Ranz v. Sposato · filed 1980-12-09(e)

Accordingly, we hold that the jurisdiction here involved is jurisdiction of the person and not subject matter jurisdiction ; and that defendants, by their failure to raise the issue either by motion or by answer, waived the initial defect in jurisdiction under CPLR 3211 (subd [e]).

A defendant can waive a pleaded objection to personal jurisdiction under CPLR 3211(a)(8) by voluntarily submitting to the court’s jurisdiction.

Biener v. Hystron Fibers, Inc. · filed 1980-12-23(a)(8)

Where a defendant evinces an intention to make the court his own forum, he waives the jurisdictional objection even though it has been pleaded, as authorized by CPLR 3211 (subd [a], par 8).

On a motion to dismiss under CPLR 3211(a)(8), the plaintiff bears the burden of proving that the defendant is subject to personal jurisdiction in New York.

Court Planners & Investor Services, Ltd. v. Fegely · filed 1981-01-19(a)(8)

This court is satisfied that the issue was adequately raised and that plaintiff failed to sustain its burden of proving (Lamarr v Klein, 35 AD2d 248, affd 30 NY2d 757) that defendant was subject to in personam jurisdiction in this State (cf. Katz & Son Billiard Prods. v Correale & Sons, 26 AD2d 52, affd 20 NY2d 903).

Section 3211(e) preserves an objection to personal jurisdiction when a defendant raises it in a motion to dismiss or, if no such motion is made, in the answer.

Colbert v. International Security Bureau, Inc. · filed 1981-03-23(e)

CPLR 3211 (subd [e]) parallels CPLR 320 by providing, in substance, that an objection to jurisdiction is not waived where it is made the subject of a motion to dismiss on that ground (CPLR 3211, subd [a], par 8) or, if no motion to dismiss is made, is asserted in the defendant’s answer.

A defendant waives a CPLR 3211(a)(8) personal jurisdiction objection by failing to raise it in its answer or in its motion under another paragraph of subdivision (a).

Burg v. City of New York · filed 1981-03-23(a)(8)

Notwithstanding that this action may have been improperly commenced, the defendant city’s failure to assert the jurisdictional objection in its answer or failure to raise the paragraph 8 objection on the present motion, having moved under paragraph 5 of subdivision (a), constitutes an appearance equivalent to personal service (CPLR 320, subd [b]), and, therefore, the city must be deemed to have waived any objection it may have had regarding noncompliance with the provisions of CPLR 311 (subd 2).

Section 3211(e) deems an objection to quasi in rem jurisdiction waived if it is not raised by preanswer motion or in the answer.

Kalman v. Neuman · filed 1981-04-13(e)

Having failed to object to quasi in rem jurisdiction by preanswer motion or in their answer, defendants must be deemed to have waived that ground (see CPLR 3211, subd [e]).

Section 3211’s waiver rule for personal jurisdiction objections does not apply to an infant party who cannot appear voluntarily.

Richardson v. Gibson · filed 1981-07-20(a)(8), (e)

The general rule that a party who answers or moves to dismiss without raising an objection to personal jurisdiction waives such objection (CPLR 3211, subd [a], par 8; subd [e]) is inapplicable to an infant party, who cannot appear voluntarily (CPLR 1201; 21 Carmody-Wait 2d, § 124:9).

Section 3211(e) requires a defendant to assert a personal jurisdiction objection in a motion to dismiss or in the answer to preserve it.

Fishman v. Pocono Ski Rental, Inc. · filed 1981-06-29(e)

Rather, lack of personal jurisdiction is an affirmative defense, which must be asserted by the defendant either in a CPLR 3211 motion, or in the answer (CPLR 3211, subd [e]). In the case at bar, the defendant preserved its jurisdictional objection by including it in its answer.

Section 3211(e) makes an objection to basis jurisdiction waivable; a defendant may raise it by preanswer motion or affirmative defense.

Gager v. White · filed 1981-07-07(e)

Unlike subject matter jurisdiction, which limits the power of a particular court rather than the judicial jurisdiction of the State en gros, a defect in basis jurisdiction is waivable (CPLR 3211, subd [e]). Under the CPLR, the objection may be raised either by a preanswer motion or by pleading it as an affirmative defense, whichever comes first (see Siegel, New York Practice, § 111, p 137; 4 Weinstein-KornMiller, NY Civ Prac, pars 3211.03-3211.05).

Section 3211(c) permits a trial of disputed service facts when a sworn denial of receipt by mail contradicts a facially sufficient affidavit of service.

LeFevre v. Cole · filed 1981-09-25(c)

Here defendant, although he concedes that the summons was delivered to a person of suitable age at his dwelling place, denies receipt of a copy of the process by mail. It is for the trier of the fact to resolve the issue raised on this motion and to determine whether defendant’s testimony controverts proof of mailing.

CPLR 3211(e) treats an objection to quasi in rem jurisdiction as waived if the defendant raises it neither in a preanswer motion nor in the answer.

Hoffman v. Westlake · filed 1981-11-09(e)

Defendants failed to object to the assertion over them of quasi in rem jurisdiction by a preanswer motion or in their answer, and must therefore be deemed to have waived the objection (see CPLR 3211, subd [e]; Gager v White, 53 NY2d 475, 483; Kalman v Neuman, 80 AD2d 116, 125).

When a CPLR 3211(a)(8) motion raises conflicting factual claims about personal jurisdiction, credibility issues require a hearing rather than a decision based solely on affidavits.

Krupnick v. Danin · filed 1982-01-25(a)(8)

Order reversed, with $50 costs and disbursements, and matter remitted to Special Term for a hearing to resolve factual issues concerning the question of personal jurisdiction. ... With such antithetical claims, it is not possible to determine credibility from written affidavits. Testimony from witnesses more appropriately serves this purpose. Special Term abused its discretion by deciding this issue solely on the affidavits.

Subdivision (d) permits discovery of facts essential to opposing a personal jurisdiction dismissal motion when the affidavits suggest those facts may exist but cannot yet be stated.

Findlay v. Duthuit · filed 1982-02-02(d)

Plaintiff’s cross motion for an order pursuant to CPLR 3211 (subd [d]) to permit discovery of the defendant as to essential facts to establish jurisdiction must be denied. It does not appear from the affidavits submitted in ... opposition to defendant’s motion (made pursuant to CPLR 3211, subd [a], par 8, to dismiss the complaint on the ground that the court does not have jurisdiction of the person of the defendant) that facts essential to justify opposition may exist, but cannot now be stated.

Section 3211(e) waives a personal jurisdiction objection if a party fails to raise it in a motion to dismiss or responsive pleading.

Giordano v. Grand Prix Sales, Service, Restoration Co. · filed 1982-02-03(e)

Moreover, even if McAllister’s general manager was served rather than McAllister himself, such jurisdictional objection has been waived. CPLR 3211 (subd [e]) provides as follows: “An objection based upon a ground specified in paragraphs eight [no jurisdiction of the person] 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.”

A party who seeks affirmative relief against a codefendant waives a personal jurisdiction objection to that codefendant’s cross claim.

Bartley v. Reedman · filed 1982-02-23(a)(8)

Duplisea did not move against Bond’s cross complaint pursuant to CPLR 3211 (subd [a], par 8). Nor did he assert lack of jurisdiction as a defense in his answer to Bond’s cross complaint. He could hardly do so, having asserted a cross claim against Bond. An affirmative assertion of jurisdiction against a party who has not brought one into the action constitutes a waiver of jurisdiction with respect to the claims at issue between them.

CPLR 3211(d) permits a continuance for jurisdictional disclosure when the allegations raise factual questions about personal jurisdiction.

Carney v. S. E. Nichols, Inc. · filed 1982-04-02(d)

The order is reversed and a continuance granted to third-party plaintiffs to permit further disclosure (see CPLR 3211, subd [d]; Peterson v Spartan Inds., 33 NY2d 463; Potter Real Estate Co. v O & S Bearing & Mfg. Co., 32 AD2d 883).

A defendant must raise an objection to quasi in rem jurisdiction in the answer or a CPLR 3211(a) motion after the action begins; opposing the attachment beforehand does not preserve the objection.

Micha v. Hnasko · filed 1982-04-08(a)

When the action was subsequently commenced based on the quasi in rem jurisdiction obtained following levy of the attachment order, defendant did not raise the issue of quasi in rem jurisdiction in either a CPLR 3211 (subd [a]) motion or as an affirmative defense in his answer. ... He did, however, through his insurer, object to the issuance of the order of attachment which served as the action’s jurisdictional predicate on that very ground. This is not sufficient to enable defendant to now amend his answer for the purpose of inserting the jurisdictional objection.

CPLR 3211 preserves a personal jurisdiction objection raised by motion or in a responsive pleading, but a defendant may still waive it through inconsistent litigation conduct.

Calloway v. National Service Industries, Inc. · filed 1982-07-09

Under CPLR 3211 an objection to the court’s jurisdiction over a person is waived unless it is raised by motion or in a responsive pleading. ... Accordingly this court adopts the rationale of implied waiver and finds that defendant’s conduct in this litigation constituted an implied waiver of its jurisdictional objection.

A defendant waives a jurisdictional objection when it raises that ground in neither an appropriate motion nor its answer.

Menefee v. Floyd & Beasley Transportation Co. · filed 1982-09-27(e)

We note that the moving defendants did not object by appropriate motion to the assertion of in rem jurisdiction predicated upon attachment of the policy by the representative of the estates of the New York decedents (the Bumpers). As the record is devoid of any indication that such objection was raised in the answer, objection on this ground was waived (see Gager v White, 53 NY2d 475, supra).

A defendant preserves a personal jurisdiction objection by timely asserting it as an affirmative defense; a related protective cross claim alone does not waive it.

Provosty v. Lydia E. Hall Hospital · filed 1982-12-20(e)

Moreover, the fact of a separate corporate existence was specifically denied in the hospital’s answer, and the jurisdictional objection was adequately preserved by the timely assertion of an appropriate affirmative defense (see CPLR 3211, subd [e]; cf. Kurz v Casey, 81 AD2d 634; Ryan v Nationwide Mut. Ins. Co., 20 AD2d 270, 272; 1 Weinstein-Korn-Miller, NY Civ Prac, par 305.16). Under these circumstances, the mere interposition of a related, protective cross claim in the hospital’s answer cannot, without more, be held to constitute a waiver of the jurisdictional objection (see Italian Colony Rest, v Wershals, 45 AD2d 841; cf. Flaks, Zaslow & Co. v Bank Computer Network Corp., 66 AD2d 363, 366, app dsmd 47 NY2d 951; Goodman v Solow, 27 AD2d 920).

Under CPLR 3211(e), a lack of personal jurisdiction defense is waived unless pleaded in the answer or raised in a motion to dismiss, including when asserted against enforcement of a foreign judgment.

Frantz v. Frantz · filed 1983-03-03(e)

Lack of personal jurisdiction, however, is ordinarily an affirmative defense which must be pleaded in the answer or asserted in a motion to dismiss or else it is waived (CPLR 3211, subd [e]; Fishman v Pocono Ski Rental, 82 AD2d 906), and the same rule should apply whether lack of personal jurisdiction is to be asserted directly or, as here, indirectly as a bar to enforcement of a foreign judgment.

Section 3211(e) waives personal-jurisdiction objections omitted from an earlier motion to dismiss, even if that motion challenged service.

Osserman v. Osserman · filed 1983-03-28(e)

We hold that the arguments urged in support of defendant’s renewed motion were waived by his failure to raise them on his prior motion to dismiss. “An objection based upon a ground specified in paragraphs eight or nine of subdivision (a) [of CPLR 3211] 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” (CPLR 3211, subd [e]).