N.Y. C.P.L.R. § 3211

Section 3211(e) permits a defendant to object to personal jurisdiction in an answer or by a timely motion to dismiss.

Al-Dohan v. Kouyoumjian · filed 1983-04-07(e)

CPLR 3211 (subd [e]) provides that a defendant may raise an objection to personal jurisdiction, either by pleading the objection in his answer as a defense or by timely motion to dismiss on that ground.

Section 3211 allows a defendant to raise lack of personal jurisdiction by a timely motion to dismiss or as an affirmative defense in the answer.

Ortiz v. Booth Memorial Medical Center · filed 1983-05-02(c)

A defendant may raise an objection to suit based on a lack of personal jurisdiction either by a timely motion to dismiss or by placing the objection in his answer as an affirmative defense (CPLR 3211, subd [c]; 320, subd [b]).

Section 3211(e) waives a lack-of-personal-jurisdiction defense if it is omitted from a motion to dismiss or responsive pleading; an answer filed by an insurer counts as a general appearance.

Bonaparte v. McCarthy · filed 1983-04-05(e)

CPLR 3211 (subd [e]) states that the? defense of lack of personal jurisdiction is waived if not included in a motion to dismiss or raised in the responsive pleading. ... An answer filed by an insurance carrier should be treated as a general appearance. ... Failure to raise the issue of service shall constitute a waiver.

Section 3211(e) permits a defendant to preserve a personal-jurisdiction objection by asserting it as an affirmative defense in the answer.

Calloway v. National Services Industries, Inc. · filed 1983-04-14(e)

CPLR 320 (subd [b]) and 3211 (subd [e]) permit a defendant who objects to jurisdiction the right to preserve such objection by asserting an affirmative defense to that effect in the answer.

CPLR 3211(e) waives objections to personal jurisdiction unless they are raised in a timely motion or in the responsive pleading.

Boswell v. Jiminy Peak, Inc. · filed 1983-05-31(e)

We need not decide whether a reversal is warranted on this ground alone, however, because, in any case, defendant Jiminy Peak, Inc., has waived any objection it may have to a purported lack of a basis for personal jurisdiction under CPLR 301 or 302.

Section 3211(e) treats a lack-of-personal-jurisdiction defense as waived when an amended answer omits it.

Keary v. Great Atlantic & Pacific Tea Co. · filed 1983-07-28(e)

Since the amended answer supersedes in all respects the previous pleading (Halmar Distrs. v Approved Mfg. Corp., 49 AD2d 841), defendant has waived the jurisdictional defense (CPLR 3211, subd [e]).

Section 3211(e) treats a personal jurisdiction defense as waived when the defendant fails to raise it and participates fully in an evidentiary hearing.

Morgan v. Morgan · filed 1983-10-20(e)

Further, defendant waived any defense of lack of personal jurisdiction (CPLR 3211, subd [e]), by failing to ever raise the defense and participating fully in the evidentiary hearing before the referee.

CPLR 3211(e) waives an objection to personal jurisdiction unless it is raised in the responsive pleading or by motion before answering.

1890 Realty Co. v. Ford · filed 1983-11-18(e)

The court finds that respondent waived said defense by failing to assert same in her answer or first order to show cause. CPLR 3211 (subd [e]), which is applicable to proceedings in the Civil Court under CCA 1002, provides in substance that any objection based upon lack of in personam jurisdiction is waived if not raised in the responsive pleading or by motion prior to answer.

Section 3211(c) leaves a separate pretrial hearing on a jurisdictional challenge to the trial court’s discretion, even when affidavits conflict.

Von Thaden v. S.J. Groves & Sons Co. · filed 1983-10-27(c)

Because there were conflicting affidavits submitted upon the motion, a hearing might have been held (CPLR 3211, subd [c]). However, the question of whether a jurisdictional attack should be considered in a separate hearing in advance of trial is left to the sound discretion of the trial court (De Vore v Osborne, 78 AD2d 915, 916; Usher v Usher, 41 AD2d 368, 371 [Greenblott, J., concurring]).

CPLR 3211(e)'s preservation rule does not preclude an insurer from challenging jurisdiction over its insured in a later action on a default judgment when the insured never appeared.

Royal Zenith Corp. v. Continental Insurance · filed 1983-12-06(e)

Inasmuch as Continental refused to defend, and Container defaulted, the appropriate motion was never made nor the affirmative defense ever asserted. Nonetheless we do not believe that Continental is now precluded from asserting the defense of lack of jurisdiction. The issue is not one of preservation of rights, but basic jurisdiction.

Section 3211(a)(8) provides the procedural course for contesting improper service by moving to dismiss.

Frerk v. Mercy Hospital · filed 1984-01-16(a)(8)

Our decision in Aversano v Town of Brookhaven (77 AD2d 641; see, also, Bal v Court Employment Project, 73 AD2d 69) is inapposite, as here defendant did not serve a notice of appearance, but, rather moved to dismiss pursuant to CPLR 3211 (subd [a], par 8), which is the proper procedural course to follow to contest improper service (Siegel, NY Prac, § 266, p 326; cf. Fraley v Desilu Prods., 23 AD2d 79).

A defendant waives a personal jurisdiction objection by answering on the merits without raising it in a motion to dismiss or as an affirmative defense.

Hura v. Mitchell · filed 1984-04-10(a)(5)

Inasmuch as IMG answered the complaint on the merits without raising the jurisdictional issue by motion to dismiss (CPLR 3211, subd [a], par 5) or by affirmative defense in the answer, the issue of personal jurisdiction over an unincorporated association is waived.

Section 3211(d) requires a showing that facts essential to oppose dismissal may exist before a court grants a continuance for jurisdictional discovery.

Schumacher v. Sea Craft Industries, Inc. · filed 1984-04-12(d)

Plaintiff’s complaint and affidavit in opposition to the motion to dismiss fail to show that “facts essential to justify opposition [to dismissal] may exist” (CPLR 3211, subd [d]).

Section 3211(d) authorizes discovery when the facts needed to resolve personal jurisdiction are uncertain or disputed.

Jacobson v. Princess Hotels International, Inc. · filed 1984-05-15(d)

Contrary to the determination reached at Special Term, discovery proceedings, on the issue of jurisdiction are authorized and necessary (Amigo Foods Corp. v Marine Midland Bank, 39 NY2d 391; Peterson v Spartan Inds., 33 NY2d 463; Petty v Oy, 93 AD2d 791; CPLR 3211, subd [d]).

A defendant does not waive a personal jurisdiction defense under CPLR 3211 merely by pleading unrelated counterclaims; affirmative action to prosecute a counterclaim triggers waiver.

Silvers v. Rizzo · filed 1984-10-18(a)(8)

The court is not prepared to say that the mere pleading of an unrelated counterclaim by a defendant without anything more waives an affirmative defense of lack of jurisdiction over the person and finds that merely pleading unrelated counterclaims does not constitute a waiver of the defense.

Section 3211 permits waiver of a personal jurisdiction objection when it is omitted from a motion or response; a dismissal motion in an enforcement action can still challenge the validity of an earlier default judgment.

Royal Zenith Corp. v. Continental Insurance · filed 1984-11-13(a)(8); (e)

While an objection based on lack of personal jurisdiction may be waived by failure to raise it in a motion or response (CPLR 3211, subd [a], par 8; subd [e]), respondent does not dispute personal jurisdiction in the pending action against it to enforce the default judgment, but asserts only the invalidity of the default judgment against Container, an issue which was properly raised here by the dismissal motion.

A defendant who serves a notice of appearance before moving under CPLR 3211 to dismiss for lack of personal jurisdiction waives that jurisdictional objection.

Benedetto v. Big V Supermarkets, Inc. · filed 1984-11-18

It is uncontroverted that in this action, the counsel for Big V served a notice of appearance, rather than immediately move pursuant to CPLR 3211 to dismiss. ... Counsel’s remedy would have been a motion to dismiss, prior to a notice of appearance, and this choice of action was not selected by counsel. Rather, a notice of appearance was served, and as such it is the opinion of this court that the alleged defect with respect to in personam jurisdiction has been waived (Aversano v Town of Brookhaven, supra; Bal v Court Employment Project, supra).

A defendant preserves a jurisdictional objection under CPLR 3211(e) when the original preanswer motion states it clearly enough to give the plaintiff notice without prejudice.

Menefee v. Floyd & Beasley Transportation Co. · filed 1984-12-24(e)

We also agree that defendants’ original motion papers were “sufficiently particularized * * * to apprise the plaintiffts] of [the] nature [of this objection] with sufficient clarity to avoid prejudice” (Gager v White, 53 NY2d 475, 489, cert den sub nom. Guertin Co. v Cachat, 454 US 1086). Plaintiffs’ reliance on the case of Tomaszewski v Cleveland (55 NY2d 852) is misplaced since the defendants there failed to preserve their objection to Setder-based jurisdiction either by answer or preanswer motion (CPLR 3211, subd [e]; see Tomaszewski v Cleveland, 103 Misc 2d 355, affd 81 AD2d 1018, revd 55 NY2d 852, supra).

On a motion to dismiss for lack of personal jurisdiction, a plaintiff who has already had substantial discovery must provide tangible evidence making a sufficient start toward showing jurisdiction before obtaining more discovery.

Sheldon v. Kimberly-Clark Corp. · filed 1984-12-31(a)(8)

Plaintiff had already engaged in a significant amount of discovery prior to the time that the motion to dismiss was made. Before further discovery was warranted, plaintiff had the burden of coming forward with some form of tangible evidence which would constitute a “sufficient start” in showing that jurisdiction could exist, and that the contention that there was a basis for the exercise of “long-arm” jurisdiction was not frivolous (see Peterson v Spartan Inds., 33 NY2d 463, 467; Cato Show Print. Co. v Lee, 84 AD2d 947). Plaintiff has failed to meet this burden.

A factual issue about personal jurisdiction requires at least an interim denial of a motion to dismiss under section 3211(a)(8).

Murray, Hollander, Sullivan & Bass v. HEM Research, Inc. · filed 1985-05-14(a)(8)

While the mere execution of the related note document might not be sufficient to assert long-arm jurisdiction over defendants (Presidential Realty Corp. v Michael Sq. W., 44 NY2d 672), there were, in fact, additional negotiations regarding such document, creating at least an issue of fact and requiring at least an interim denial of the motion.

Section 3211(e) treats a defendant’s failure to timely raise lack of personal jurisdiction as a waiver of that defense.

Pefanis v. Long · filed 1985-11-21(e)

Defendant here waived the defense of lack of personal jurisdiction by his inaction (CPLR 320 [b]; 3211 [e]).

A § 3211(a)(8) motion disputing service may be denied when no affidavit from someone with personal knowledge contradicts the process server’s account.

De Curzio v. T.S.S. Seedman's, Inc. · filed 1985-12-16(a)(8)

However, Special Term correctly denied dismissal with respect to the corporate defendant in the absence of any affidavit by someone with personal knowledge of the facts, denying the process server’s version of service.

Section 3211 permits a defendant to preserve an objection to personal jurisdiction by raising it in a motion or answer; an unauthorized attorney appearance does not waive that objection.

Skyline Agency, Inc. v. Ambrose Coppotelli, Inc. · filed 1986-05-12(a)(8)

An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him, and therefore confers personal jurisdiction over him, unless he asserts an objection to jurisdiction either by way of motion or in his answer (CPLR 320 [b]; 3211 [a] [8]; Colbert v International Sec. Bur., 79 AD2d 448). ... Accordingly, we conclude that jurisdiction was not acquired over Frank Coppotelli since he was never served with a summons and did not voluntarily submit to the court’s jurisdiction.

Section 3211(e) treats a defendant’s failure to raise a personal jurisdiction objection in its moving papers as a waiver of that objection.

Supreme Merchandising Co. v. Iwahori Kinzoku Co. · filed 1986-06-05(e)

We think it unnecessary to resolve this question because the record is clear that Kinzoku waived its objection to the court’s in personam jurisdiction when its moving papers failed to include an objection to personal jurisdiction under CPLR 3211 (a) (8).

Section 3211(d) permits limited discovery into personal jurisdiction when the plaintiff shows that supporting facts may exist, even if jurisdiction has not yet been established.

National Union Fire Insurance v. Ideal Mutual Insurance · filed 1986-08-07(d)

There is merit to plaintiff’s contention that although it may not have established a basis for jurisdiction, it has shown sufficient to entitle it to discovery on that limited issue pursuant to CPLR 3211 (d).

A plaintiff defeats a CPLR 3211(a)(8) motion by presenting sufficient facts to sustain the allegation of personal jurisdiction.

RMR Wine Distributors Corp. v. Fratelli Pasqua, S.p.A. · filed 1987-01-12(a)(8)

Sufficient facts were set forth in the complaint and papers submitted by the plaintiff in opposition to Pasqua’s cross motion to establish the requisite basis for an exercise of in personam jurisdiction over Pasqua. The plaintiff has, therefore, met its burden of sustaining the allegation of personal jurisdiction so as to defeat such motion.

CPLR 3211 requires a defendant to raise lack of personal jurisdiction in a preanswer motion or in the answer.

Naccarato v. Kot · filed 1986-10-23(a)(8), (e)

Undeniably, the City did not appropriately raise an objection to personal jurisdiction either by way of a preanswer motion or in its answer to plaintiff’s complaint (see, CPLR 3211 [a] [8]; [e]).

A defendant who moves to dismiss under CPLR 3211 on another ground waives a personal jurisdiction objection by omitting it from that motion.

Montcalm Publishing Corp. v. Pustorino · filed 1986-12-04(e)

However, if a defendant makes any CPLR 3211 motion based on other subdivision (a) objections and fails to include the jurisdictional objection, he forever waives that defense.

Section 3211(e) prevents a party who failed to raise a service-of-process objection at the hearing from raising it for the first time on appeal.

Lewin v. Lewin · filed 1986-11-17(e)

Moreover, the appellant failed to raise any issue concerning service of process at the hearing and cannot do so for the first time on appeal (CPLR 3211 [e]).

Section 3211(a)(8) permits dismissal when defective service leaves the court without jurisdiction over a respondent.

Keogh v. New York State Department of Health · filed 1987-03-30(a)(8)

The court correctly dismissed the proceeding with respect to the respondent New York State Department of Health, since the court never acquired jurisdiction over that respondent (see, CPLR 3211 [a] [8]; 7804 [f]).

Section 3211(e) allows a court, in its discretion, to permit a defendant to add a personal jurisdiction objection to a pending motion to dismiss before the motion is decided.

Russell v. Arthur Trask Co. · filed 1987-03-05(e)

In our view, the strict waiver provision of CPLR 3211 (e) should not be read as preventing the court from exercising its discretion and allowing a defendant who moves to dismiss pursuant to CPLR 3211 (a) to amend his motion papers prior to the determination of the motion to include an objection to personal jurisdiction.

Section 3211(e) waives a personal jurisdiction objection omitted from an earlier motion to dismiss, even when the plaintiff later amends the complaint as of right.

Addesso v. Shemtob · filed 1987-07-09(e)

There is no reason to depart from the statute’s plain language even though the jurisdictional defect was asserted in a pleading made as of right in response to a complaint amended as of right by plaintiff. The basis for the objection of lack of personal jurisdiction — improper service of the summons and the original complaint — should have been made in the earlier CPLR 3211 (a) motion to dismiss.

Section 3211(e) waives personal jurisdiction objections unless they are raised in a motion before the responsive pleading is due or in the responsive pleading itself.

Anastasiou v. Fulton Street Pub · filed 1987-10-26(e)

Pursuant to CPLR 3211 (e), the particular jurisdictional challenges raised by the defendant herein must be considered waived if not asserted by way of a motion to dismiss "before service of the responsive pleading is required”, or in the responsive pleading itself (see, Provosty v Hall Hosp., 91 AD2d 658, affd 59 NY2d 812).

Section 3211(a)(8) permits a defendant to raise an objection to personal jurisdiction by motion.

Sibley v. Lake Anne Realty Corp. · filed 1988-01-19(a)(8)

We conclude that since personal jurisdiction over the defendants had not been obtained, the defendants were free to raise the issue by way of motion (see, CPLR 3211 [a] [8]) or, as they did here in their papers in response to the plaintiffs’ order to show cause (see, Le Conte v City of New York, 129 Misc 2d 719).

A defendant waives an objection to the diligence used before substituted service if the objection was not raised in its motion papers.

McCormack v. Gomez · filed 1988-02-01(e)

Second, the issue of lack of due diligence was not raised by the defendants in their papers submitted to the Supreme Court and is therefore deemed waived (see, CPLR 3211 [e], [a] [8]).

Section 3211(e) ordinarily waives an omitted dismissal ground, but a court may consider the objection in appropriate circumstances.

Blumstein v. Menaldino · filed 1988-11-14(e)

Thus, while the omission of this ground for dismissal would ordinarily constitute a waiver thereof (see, CPLR 3211 [e]; Addesso v Shemtob, 70 NY2d 689), under the present circumstances the Supreme Court properly entertained the defendants’ objection (see, Farkas v Tarrytown Lbr., 133 AD2d 251; Russell v Trask Co., 125 AD2d 136, 138-139).

Section 3211(e)'s waiver rule applies to the State's objection to personal jurisdiction based on improper service.

Thomas v. State · filed 1988-11-23(e)

Although the State contends that it is not subject to the waiver provision set forth in CPLR 3211 (e), this court’s decision in Trayer v State of New York (90 AD2d 263) holds otherwise.

Raising a personal jurisdiction objection in the answer preserves it despite the defendant’s continued participation in the action.

Janko Pool Service, Inc. v. Berelson · filed 1988-12-29(e)

Further, since defendant fully complied with CPLR 3211 (e) by raising the objection in his answer, defendant’s continued participation in the action "did not expressly or impliedly waive [his] jurisdictional objection” (Calloway v National Servs. Indus., 93 AD2d 734, 735, affd 60 NY2d 906).

On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of proving jurisdiction over the defendant.

Reed v. Trailways Bus Systems · filed 1989-01-30(a)(8)

The Supreme Court properly determined that the plaintiff ...failed to meet her burden of proving that she obtained jurisdiction over the defendant corporation (see, Preferred Elec. & Wire Corp. v Duracraft Prods., 114 AD2d 407).

A motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8) fails when the defendant’s participation on the merits constitutes an informal appearance and waives that defense.

Rubino v. City of New York · filed 1989-03-14(a)(8)

Defendant here proceeded to trial and appeal, represented by the Corporation Counsel, without ever raising the defense of personal jurisdiction or Statute of Limitations. Such a participation on the merits of the action constituted an informal appearance conferring jurisdiction upon the court and, under the circumstances of this case, a waiver of these personal defenses.

A party may not contest personal jurisdiction over another party that appeared without objecting.

Barber v. Mahoney · filed 1989-06-02(a)(8), (e)

Respondent may not contest the court’s jurisdiction over the Board of Elections where the ... Board appeared on the return date and has raised no objection (see, CPLR 3211 [a] [8]; [e]).

A defendant timely preserves a personal-jurisdiction objection by raising it in answering papers.

Bank Hapoalim v. Kotten Machine Co. · filed 1989-06-22(a)(8), (e)

Thus, by including the jurisdictional objection in his answering papers, the affirmative defense is duly and timely asserted.

CPLR 3211 permits a defendant to object to the method of service before answering, and a claim based on ineffective service must be dismissed when the objection is proper.

Marshall v. State · filed 1989-06-22

Inasmuch as the defendant has properly objected to the method of service (CPLR 3211), any claim based upon it must be dismissed.

A personal-jurisdiction defense is preserved when asserted in an amended answer served as of right.

Diamadopolis v. Balfour · filed 1989-07-03(a)(8)

Accordingly, we treat the answer served by the Meiselman firm as an amended answer served as of right and the jurisdictional defense asserted therein to be properly preserved (CPLR 3025 [a]; see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:62, at 66).

On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing facts sufficient to support jurisdiction.

Carte v. Parkoff · filed 1989-07-10(a)(8)

Based on the foregoing facts, it is clear that the Supreme Court erred in denying the defendant’s motion to dismiss the complaint on the ground that the court lacked jurisdiction over the person of the defendant (CPLR 3211 [a] [8]). The plaintiff failed to meet his burden of showing the existence of facts sufficient to warrant the exercise of jurisdiction over the person of the defendant as a matter of New York law.

Serving a demand for authorizations does not waive a defendant’s CPLR 3211(a)(8) objection to personal jurisdiction when the defendant was never personally served.

Pendergrast v. St. Mary's Hospital · filed 1989-12-11(a)(8)

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the cross motion of the defendants Lieber and Teran which was to dismiss the complaint as against them pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction, is granted, and the action against the remaining defendants is severed.

A motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8) may be denied when the motion papers do not establish that jurisdiction is absent.

Firegreen Ltd. v. Claxton · filed 1990-04-17(a)(8)

In that regard, defendants moved to dismiss the complaint for lack of personal jurisdiction under CPLR 3211 (a) (8). Since the absence of jurisdiction cannot be ascertained from the papers, the Supreme Court appropriately declined to dismiss the complaint at this time.

CPLR 3211 permits waiver of an objection to the method of service under Court of Claims Act § 11 because that objection concerns personal jurisdiction.

Colon v. State · filed 1990-03-20

In Baggett v State of New York (124 AD2d 969, supra) and its progeny, the appellate courts have held that while timeliness of service under section 10 goes to subject matter jurisdiction, the issue of method of service under section 11 is one of personal jurisdiction which may be waived in accordance with CPLR 3211. ... We have decided to follow Wanton (supra). We would add only that unless and until the Court of Appeals overturns Baggett, Reed and Thomas (supra), they remain good law binding on this court.

Section 3211(e) waives a personal jurisdiction defense when a defendant omits it from an earlier motion to dismiss.

Greenfield v. Philles Records, Inc. · filed 1990-04-17(e)

The second motion to dismiss was not made within the time prescribed by CPLR 3211 (e) for the making of a motion under CPLR 3211 (a). Therefore, the hearing court’s conclusion that the failure to include the ground of lack of personal jurisdiction in the first motion waived that ground as a defense was correct under the circumstances.

CPLR 3211(e) treats a defense of lack of personal jurisdiction as waived when it is not raised in the answer.

Lightcap v. McGroggan · filed 1990-04-26(e)

Moreover, respondents failed to allege the defense of lack of personal jurisdiction in their answer, thereby waiving it (see, CPLR 3211 [e]).

A defendant waives a personal-jurisdiction defense by failing to raise it in the answer or a preanswer motion to dismiss.

Tralongo v. State · filed 1990-05-07(e)

Although the State was aware of the allegedly improper manner of service at the outset, it failed to raise a jurisdictional objection in its answer or in a preanswer motion to dismiss, and thereby waived the defense (see, CPLR 3211 [a] [8]; [e]; Addesso v Shemtob, 70 NY2d 689; Reed v State of New York, supra; Leon v Montano, 119 AD2d 553).

CPLR 3211(e) preserves a defense of lack of personal jurisdiction when the defendant raises it in the answer.

Klette v. Klette · filed 1990-11-13(e)

We note initially that defendant did not waive the defense of lack of in personam jurisdiction since he raised the defense in his answer (CPLR 3211 [e]; Calloway v National Servs. Indus., 93 AD2d 734, affd 60 NY2d 906).

When service is genuinely disputed, the court should hold a traverse hearing before deciding a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8).

Hinds v. 2461 Realty Corp. · filed 1991-01-29(a)(8)

Since there is a total disagreement as to whether service was accomplished, there should be a traverse hearing (Lexington Ins. Co. v Schuyler Bumpers, 125 AD2d 554, 554-555; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135, 139).

Section 3211(e) waives an objection to personal jurisdiction unless it is raised in the answer or a preanswer motion; pleading defective service alone does not preserve a distinct challenge to the basis for jurisdiction.

Hatch v. Tran · filed 1991-02-25(e)

An objection to personal jurisdiction is waived unless it is raised in the answer or in a preanswer motion to dismiss, whichever comes first (see, Gager v White, 53 NY2d 475, cert denied sub nom. Guertin Co. v Cachat, 454 US 1086; CPLR 3211 [e]). Since a challenge to the basis of the court’s jurisdiction is distinct from a claim of defective service of process, the respondents were required to plead this defense with particularity (see, Gager v White, supra; cf., Rich v Lefkovits, 56 NY2d 276).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when service of process is invalid.

Broman v. Stern · filed 1991-04-01(a)(8)

We agree with the Supreme Court that the mailing of the summons and complaint to the attorney for the defendants-respondents did not constitute valid service and that the action should, therefore, be dismissed on the ground of lack of personal jurisdiction (see, CPLR 3211 [a] [8]).

Section 3211 treats a lack of personal jurisdiction defense as waived when defendants neither move to dismiss on that basis nor assert it in their answer.

Papa v. Almeida · filed 1991-02-11(a)(8), (e)

The defendants Albilio M. Almeida and Liberty Ashes & Rubbish Co., Inc., waived the defense of lack of personal jurisdiction by failing to move to dismiss the complaint on that basis (see, CPLR 3211 [a] [8]) and failing to assert that defense in their answer (see, CPLR 3211 [e]; Anastasiou v Fulton St. Pub, 133 AD2d 796). Thus, the Supreme Court erred in granting the request for a hearing to determine whether process was properly served.

Section 3211(e) treats a defendant’s failure to raise lack of personal jurisdiction in its original answer as a waiver that an amended complaint does not undo.

Boulay v. Olympic Flame, Inc. · filed 1991-02-14(e)

Thus, it is clear that a plaintiffs service of an amended complaint does not negate a waiver of the defense of personal jurisdiction which arises out of a defendant’s response to the original complaint.

Section 3211(e) waives a personal-jurisdiction defense omitted from a responsive pleading, even when service of process is defective.

International Business Machines Corp. v. Murphy & O'Connell · filed 1991-04-02(e)

The failure to raise the defense of lack of personal jurisdiction in a responsive pleading constitutes a waiver of the defense (CPLR 3211 [e]), even where service of process is obviously defective.

CPLR 3211(a)(8) permits dismissal when a summons served without a complaint lacks the notice required by CPLR 305(b), creating a jurisdictional defect.

Schwartz v. Commissioner of Finance · filed 1991-04-25(a)(8)

Upon examination of the record, we find that the IAS court properly dismissed the underlying action pursuant to CPLR 3211 (a) (8) where the February 15, 1990 summons, ... failed to contain the information mandated by CPLR 305 (b).

On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of proving service of process at a traverse hearing.

Stanton v. Velis · filed 1991-04-25(a)(8)

Order, Supreme Court, New York County (Ira Gammerman, J.), entered on or about September 17, 1990, which granted the defendant’s motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of in personam jurisdiction, unanimously affirmed, without costs. ... In any event, we find that the IAS court properly concluded that the evidence adduced at the traverse established that the plaintiff had failed to sustain her burden of proof on service of process (Frankel v Schilling, 149 AD2d 657).

On a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8), the plaintiff bears the burden of establishing jurisdiction.

Joseph v. Siebtechnik · filed 1991-04-26(a)(8)

On a motion to dismiss for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8), plaintiff has the burden of establishing the fact of jurisdiction (Derso v Volkswagen of Am., 159 AD2d 937, 938; Cato Show Print. Co. v Lee, 84 AD2d 947, appeal dismissed 56 NY2d 593).

A defendant waives an objection to personal jurisdiction under CPLR 3211(a)(8) by participating in the defense for years without raising it.

Feola v. Moore McCormack Lines, Inc. · filed 1991-05-14(a)(8)

Although plaintiff never served a summons and complaint upon it, Quinn, by serving its reply to Moore McCormack’s cross-claims upon Moore McCormack and plaintiff in 1978 and, thereafter, participating fully in the defense of the action for almost eleven years without raising any jurisdictional objection until its present motion pursuant to CPLR 3211 (a) (8), must be deemed to have submitted to the court’s jurisdiction and waived any objection regarding in personam jurisdiction.

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when service was defective and the defense was not waived.

Morgan v. Central General Hospital · filed 1992-01-21(a)(8)

Inasmuch as Dr. Sherwood did not waive the defense of lack of personal jurisdiction on which he now relies, and since the service upon Dr. Sherwood was defective, his motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him personally should have been granted.

Section 3211(e) permits a defendant to preserve a personal jurisdiction objection in the answer, even if a later motion to dismiss does not raise it.

Crook v. E. I. du Pont de Nemours Co. · filed 1992-03-13(e)

Supreme Court erred in finding that, since defendants Hotsy Corporation (Hotsy) and National Chem-search (Chemsearch) made a CPLR 3211 (a) motion that did not challenge jurisdiction, they waived that defense even though it was contained in their answers. CPLR 3211 (e) permits a defendant to interpose an objection to personal jurisdiction either by making a motion to dismiss or by raising it as a defense in the answer (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:59, at 81).

Section 3211(e) bars a defendant from raising an objection to long-arm jurisdiction on a later motion if the defendant failed to assert it in the answer.

Wiesener v. Avis Rent-A-Car, Inc. · filed 1992-04-02(e)

Supreme Court therefore correctly determined that defendant’s failure to assert the objection to long-arm jurisdiction in its answer is a bar to its assertion upon this motion (see, Siegel, NY Prac § 111, at 138).

Section 3211(e) waives a personal jurisdiction objection when a party moves to dismiss under subdivision (a) without raising it, even if the motion is later withdrawn.

Gelstein v. Lieberman · filed 1992-04-14(e)

Here, Barnet Liberman first moved on one of the grounds set forth in CPLR 3211 (a), namely, paragraph (5), without raising the defense of lack of jurisdiction. That his motion was withdrawn before final submission after appearing on two occasions on the court’s calendar does not nullify the waiver of the jurisdictional defense. By so moving, Barnet conferred jurisdiction over his person on the court.

Section 3211(e) treats a defendant’s merits opposition to a motion for summary judgment in lieu of complaint, without a jurisdictional objection, as a waiver of that objection.

Vernon v. Winikoff · filed 1992-04-20(e)

We note that defendant waived his objection to the court’s jurisdiction over his person since he opposed the plaintiffs motion for summary judgment in lieu of complaint on the merits without raising any jurisdictional objection (see, CPLR 3211 [e]; Katz v Katz, 68 AD2d 536).

Section 3211(e) waives a personal jurisdiction defense omitted from a preanswer motion to dismiss.

Lauro v. Cronin · filed 1992-06-04(e)

The CPLR 3211 preanswer motion to dismiss did not include a personal jurisdiction defense and that defense was thereby waived (see, CPLR 320 [a]; 3211 [e]; Addesso v Shemtob, 70 NY2d 689, 690).

A claim against a corporation may be dismissed for lack of personal jurisdiction under § 3211(a)(8) when the plaintiff served it by ordinary mail.

Kenna v. New York Mutual Underwriters · filed 1992-12-21(a)(8)

The Supreme Court properly granted summary judgment and dismissed the action against Volpe for lack of personal jurisdiction. Volpe submitted proof in admissible form that it received a copy of the summons and complaint by ordinary mail. The plaintiff admitted service by ordinary mail. Dismissal on this ground was therefore proper (see, CPLR 311; Business Corporation Law §§ 304-307; CPLR 3211 [a][8]; 3212; Zuckerman v City of New York, 49 NY2d 557).

On a motion to dismiss for lack of personal jurisdiction, a plaintiff who makes a sufficient start in establishing jurisdiction may obtain further discovery and a hearing.

Longview Fibre Co. v. Triple R Industries · filed 1992-12-30(a)(8)

Instead, we conclude that based upon our review of the record, plaintiff has made a "sufficient start” to warrant further discovery and a hearing on the issue of personal jurisdiction ... this matter is therefore remitted to Supreme Court for that purpose.

CPLR 3211 requires a defendant to raise lack of personal jurisdiction or waive that defense.

Vicom, Inc. v. Silverwood Development, Inc. · filed 1992-12-30

Under New York law, a plaintiff has no obligation to plead a basis for personal jurisdiction, nor to demonstrate such basis as a threshold matter. An absence of jurisdictional basis results in lack of personal jurisdiction, a defense that defendant must raise or be deemed to have waived (CPLR 3211).

A CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction is denied when the defendant does not challenge the plaintiff’s assertion that service was valid.

Israel v. Merrill Lynch Credit Corp. · filed 1993-12-31(a)(8)

Merrill Lynch cross-moves for an order pursuant to CPLR 3211 (a) (8) dismissing the complaint on the ground that the court does not have jurisdiction of the person of the defendant. ... As for the cross motion, plaintiff asserts that he served an attorney in Merrill Lynch’s office of General Counsel who had agreed to accept service. Merrill Lynch does not challenge this assertion or the argument that service is therefore valid. The cross motion must be denied.

CPLR 3211(a)(8) permits dismissal when defective service leaves the court without personal jurisdiction over a defendant.

Preza v. Gourmet · filed 1995-02-27(a)(8)

Therefore, the court was without jurisdiction over the defendant Sever’s Gourmet and should have granted its motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as it is asserted against it (see, Public Adm’r of Kings County v University Hosp., 123 AD2d 676, 677).

CPLR 3211(a)(8) permits dismissal when ineffective service leaves the court without personal jurisdiction.

Shea v. Kralik · filed 1995-10-30(a)(8)

Since no other method of service was attempted, the court never acquired personal jurisdiction over the appellant and the proceeding should have been dismissed.

A defendant waives a personal jurisdiction objection unless it states the objection with specificity in its answer or preanswer motion.

Interlink Metals & Chemicals, Inc. v. Kazdan · filed 1996-06-13(a)

A defense based upon lack of personal jurisdiction is deemed waived if the defendant fails to assert it, with specificity, in its answer or in connection with a preanswer motion based upon a ground set forth in CPLR 3211 (a) (Wiesener v Avis Rent-A-Car, 182 AD2d 372, 372-373; see also, Siegel, 1992 Supp Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:30,1996 Pocket Part, at 7).

Section 3211(e) waives grounds for dismissal based on lack of personal jurisdiction that are omitted from the initial motion.

Jaffer v. Bash · filed 1997-02-03(e)

By failing to raise all of his grounds for dismissal for lack of personal jurisdiction in a single motion, the defendant waived those objections not raised initially (cf., CPLR 3211 [e]; Addesso v Shemtob, 70 NY2d 689, 690).

On appeal from the denial of a Section 3211(a)(8) motion for lack of personal jurisdiction, a proximate-cause argument concerns the merits and is not properly before the court.

Pomerantz v. Wolfin · filed 1997-02-03(a)(8)

The appellants David R. Barron and Daniel F. Richfield contend that their conduct could not have constituted a proximate cause of Mrs. Pomerantz’s injury. This contention, however, relates to the merits, and is not properly before us on this appeal from an order denying a motion to dismiss pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction.

Section 3211(a)(8) permits dismissal when no basis for personal jurisdiction over the defendant is alleged.

Polymont International, Inc. v. National Polystyrene Recycling Co. · filed 1998-12-28(a)(8)

As no other basis is alleged for personal jurisdiction over the defendant, the Supreme Court properly granted the defendant’s motion to dismiss the complaint (see, CPLR 3211 [a] [8]).

A party may waive an objection to personal jurisdiction by submitting to the court’s jurisdiction, including through a partial settlement that acknowledges the judgment.

Lomando v. Duncan · filed 1999-01-25(e)

A defect in personal jurisdiction may be waived (see, e.g., CPLR 3211 [e]; Textile Technology Exch. v Davis, 81 NY2d 56; Revona Realty Corp. v Wasserman, 4 AD2d 444, 448), where a party submits to the court’s jurisdiction by, inter alia, stipulating to settle an action (see, Matter of Manufacturers Hanover Trust Co. v Porcelli, 121 AD2d 384; Biener v Hystron Fibers, 78 AD2d 162, 167).

CPLR 3211(a)(8) permits dismissal of a complaint against a defendant over whom the plaintiff has not obtained personal jurisdiction.

Jordan v. Lehigh Construction Group, Inc. · filed 1999-03-19(a)(8)

Supreme Court properly granted the motion of Viking to dismiss the complaint against it pursuant to CPLR 3211 (a) (8) and properly denied plaintiff’s cross motion to amend the summons and complaint to name Viking as the correct defendant pursuant to CPLR 305 (c) and 2001.

CPLR 3211 (a) (8) permits dismissal for lack of personal jurisdiction when service fails and the defendant preserves the jurisdictional objection.

Kostelanetz & Fink, L. L. P. v. Zhao · filed 1999-04-19(a)(8)

Inasmuch as defendant failed to return the acknowledgment form and plaintiff concededly failed to effect service by any other means, defendant was not properly served under CPLR article 3. Accordingly, the court lacks in personam jurisdiction over the defendant. Defendant’s motion to dismiss the complaint is granted pursuant to CPLR 3211 (a) (8), and plaintiffs cross motion to strike the affirmative defense is denied.

A motion to dismiss for lack of personal jurisdiction preserves that defense when made before answering the complaint.

Ferran v. Benkowski · filed 1999-04-01(a)(8)

Since we find that a jurisdictional defense was asserted in defendant’s motion to dismiss both actions, prior to answering the complaint under the second purchased index number, no waiver can be found.

To defeat a motion to dismiss for lack of personal jurisdiction, the plaintiff need only make a prima facie showing that jurisdiction exists.

Sipa Press, Inc. v. Star-Telegram Operating, Ltd. · filed 1999-06-02(a)(8)

However, to defeat the motion to dismiss, plaintiff need only make a prima facie showing that jurisdiction exists.

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when a petitioner fails to serve the signed order to show cause and petition as directed, absent evidence that imprisonment prevented compliance.

Lomonaco v. Travis · filed 1999-09-09(a)(8)

Inasmuch as petitioner, a prison inmate, failed to serve a signed order to show cause and petition upon respondent and the Attorney General, and there being no evidence that his imprisonment created an obstacle preventing his compliance with the service directives contained in the order to show cause (see, Matter of Gittens v Selsky, 193 AD2d 986, 987), Supreme Court properly dismissed the petition for lack of personal jurisdiction (see, CPLR 3211 [a] [8]; see also, Matter of Arroyo v Coombe, 239 AD2d 634, 635, lv denied 90 NY2d 812; Matter of Marsalona v Coombe, 234 AD2d 841).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when the plaintiff fails to properly serve the defendant.

Louros v. Concepcion · filed 2000-02-28(a)(8)

The plaintiff failed to properly serve the defendant, a resident of the State of Connecticut. Accordingly, the Supreme Court properly granted the defendant’s timely cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (8).

CPLR 3211(a)(8) permits dismissal of a counterclaim when improper service leaves the court without personal jurisdiction over the party against whom it is asserted.

Linzer v. Bal · filed 2000-03-02(a)(8)

Because respondent Bal clearly did not serve the summons and answer containing the counterclaim as prescribed by article 3 (see, CPLR 311, 312), the court lacks personal jurisdiction over respondent Board. ... Accordingly, the motion to dismiss is granted and the counterclaim asserted against respondent Board is hereby dismissed pursuant to CPLR 3211 (a) (8).

On a motion to dismiss for lack of personal jurisdiction, an insufficient rebuttal to proof of service does not require a hearing.

Simonds v. Grobman · filed 2000-11-20(a)(8)

The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground that they had not been properly served with process pursuant to CPLR 308 (2). ... The affidavit of nonparty Frank Grobman was insufficient to raise a triable issue of fact, and the Supreme Court properly granted the plaintiffs’ cross motion to strike the defense of lack of personal jurisdiction without a hearing.

CPLR 3211(e) provides for waiver of personal jurisdiction objections.

Weslock v. Weslock · filed 2001-02-06(e)

Defendant’s remaining contentions, with respect to personal jurisdiction, in addition to being unpreserved, have been waived pursuant to CPLR 3211 (e).

On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of proving by preponderating evidence that jurisdiction was obtained.

Samson v. Fleischer · filed 2001-04-16(a)(8)

However, the Supreme Court properly found that the plaintiffs failed to satisfy their burden of proving, by preponderating evidence, that jurisdiction over the defendant Helen Cutler had been obtained (see, Frankel v Schilling, 149 AD2d 657; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135).

On a motion to dismiss for lack of personal jurisdiction, the party asserting jurisdiction bears the burden of proof.

Sanchez v. Major · filed 2001-12-10(a)(8)

On the issue of whether a court may assert jurisdiction over a defendant, the burden of proof rests with the party asserting jurisdiction (see, Brandt v Toraby, 273 AD2d 429, 430). In light of the appellants’ unrefuted allegations that there is no basis for the Supreme Court to assert jurisdiction over them, their motion should have been granted (see, Brandt v Toraby, supra).

A motion to dismiss under CPLR 3211(a)(8) for lack of personal jurisdiction fails when the defendant previously submitted to jurisdiction under a stipulation in the action.

Alaska Seaboard Partners, LP v. Low · filed 2002-05-06(a)(8)

The Supreme Court properly denied the appellant’s motion, as he had previously submitted to the court’s personal jurisdiction under the terms of a prior stipulation in the action.

CPLR 3211(e) treats an objection to defective service as waived when a party appears without raising it.

In re Parkside Ltd. Liability Co. · filed 2002-05-28(e)

Even if there had initially been a defect regarding personal jurisdiction over the appellant, defects in the service of process, and thus defects in the commencement of a proceeding, are waived if a party appears in the proceeding without raising the objection (see CPLR 3211 [e]; Matter of Fry v Village of Tarrytown, 89 NY2d 714, 720-721; DeFilippis v Perez, 148 AD2d 490, 491-492). Here, the appellant appeared in the proceeding by service of a responsive pleading in which he did not raise a jurisdictional objection.

A party waives a lack-of-personal-jurisdiction defense by omitting it from a preanswer motion to dismiss.

Washington v. Palanzo · filed 2002-06-07(e)

Because the motion contained no reference to the court’s lack of personal jurisdiction, appellant waived the defense (CPLR 3211 [e]; Competello v Giordano, 51 NY2d 904, 905; 6A Carmody-Wait 2d, NY Prac § 38:85, at 425-426).

Under CPLR 3211(d), a plaintiff who makes a sufficient start toward showing personal jurisdiction may receive discovery at the court’s discretion without first making a prima facie showing.

Bunkoff General Contractors, Inc. v. State Automobile Mutual Insurance · filed 2002-07-11(d)

Such burden, however, does not entail making a prima facie showing of personal jurisdiction; rather, plaintiff need only demonstrate that it made a “sufficient start” to warrant further discovery ... which, pursuant to CPLR 3211 (d), is within Supreme Court’s discretion to grant.

Section 3211(a)(8) permits dismissal when the plaintiff fails to file a summons before serving process.

Nadherny v. Eppel · filed 2002-10-01(a)(8)

Supreme Court properly granted defendant’s motion to dismiss the third amended complaint pursuant to CPLR 3211 (a) (8) based upon plaintiff’s failure to file a summons.

Section 3211(e)'s waiver of an improper-service defense cannot justify denying a motion on reargument when the alleged waiver arose after the original order.

Said v. Abarn Equipment Corp. · filed 2002-11-29(e)

However, upon reargument, the court denied defendant’s motion on a ground which did not exist at the time of its initial motion, to wit, that pursuant to CPLR 3211 (e), defendant had waived the defense of improper service. Thus, the court erred in denying defendant’s motion on said ground even though defendant had served its answer in the interim in which it alleged that the court lacked jurisdiction over it. Upon granting reargument, the court was obliged to review the propriety of its prior order under the facts as they existed as of August 22, 2001.

Section 3211(e) permits a defendant to preserve a personal jurisdiction defense omitted from the initial answer by adding it in an amendment as of right.

Iacovangelo v. Shepherd · filed 2005-06-30(e)

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).

A plaintiff opposing a motion to dismiss for lack of personal jurisdiction must present evidence that the defendant was served.

Abrams, Fensterman, Fensterman, Flowers & Eisman, LLP v. Alpern · filed 2005-07-18(a)(8)

In opposition to appellants’ motion to dismiss the complaint and vacate a preliminary injunction insofar as asserted against them based on lack of personal jurisdiction (see CPLR 3211 [a] [8]), the plaintiffs did not proffer evidence that the appellants were served with the summons and complaint (see CPLR 3211 [e]; Moustafa v Jamaica Hosp. Med. Ctr., 304 AD2d 539 [2003]). Thus, the motion should have been granted.

A party seeking dismissal for lack of personal jurisdiction must provide sufficient proof to warrant dismissal.

Galarza v. Saddle Cove Associates, LLC · filed 2005-10-11(a)(8)

SAV failed to come forward with proof sufficient to warrant the granting of the motion (cf. Richmond Hill Sav. Bank v Sisters of Order of St. Dominic, 126 AD2d 627, 628 [1987]). ... Accordingly, SAV was not entitled, inter alia, to dismissal of the third-party complaint on the ground of lack of personal jurisdiction (see CPLR 3211 [a] [8]; [e]).

On a preanswer motion to dismiss for lack of personal jurisdiction, the plaintiff need only make a prima facie showing that jurisdiction exists.

Opticare Acquisition Corp. v. Castillo · filed 2005-11-07(a)(8)

On this record, made upon a preanswer motion to dismiss the action under CPLR 3211 (a) (8), the plaintiff need only make a prima facie showing that personal jurisdiction exists.

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

Colon v. Bailey · filed 2006-02-28(a)(8)

Under all the circumstances, the defendants’ motion to dismiss for lack of personal jurisdiction (see CPLR 3211 [a] [8]) was properly granted.

CPLR 3211(e) does not waive a personal jurisdiction objection when the party neither appears nor makes another CPLR 3211(a) motion that omits the objection.

Government Employees Insurance v. Basedow · filed 2006-04-25(e)

Contrary to GEICO’s contention, the waiver provisions of CPLR 3211 (e) do not apply here because American neither appeared in the proceeding nor made another motion pursuant to CPLR 3211 (a) that failed to make its objections to personal jurisdiction.

Section 3211(a)(8) permits a defendant to seek dismissal for lack of personal jurisdiction and requires the plaintiff opposing the pre-answer motion to make a prima facie showing that jurisdiction exists.

Bill-Jay Machine Tool Corp. v. Koster Industries, Inc. · filed 2006-05-02(a)(8)

To successfully oppose a pre-answer motion to dismiss a complaint pursuant to CPLR 3211 (a) (8), “the plaintiff need only make a prima facie showing that personal jurisdiction exists” (Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction, while section 3211(d) permits further discovery related to the motion.

Brinkmann v. Adrian Carriers, Inc. · filed 2006-05-09(a)(8), (d)

We disagree with the Supreme Court that, under these circumstances, jurisdiction over a nonresident for a tortious act occurring outside of New York requires more than a designated recipient of process. ... Accordingly, Adrian Carriers was not entitled to dismissal of the complaint insofar as asserted against it for lack of personal jurisdiction. ... The plaintiffs’ request for further discovery pursuant to CPLR 3211 (d) is likewise without merit.

A party waives a personal jurisdiction objection by failing to raise it in its initial motion to dismiss.

Ballard v. HSBC BANK USA · filed 2006-05-11(e)

Furthermore, HSBC’s initial motion at the Appellate Division did not seek dismissal on personal jurisdiction grounds (see CPLR 3211 [e]).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction and requires a hearing when the affidavits raise a factual issue about proper service.

Garcia v. Munseob · filed 2006-10-03(a)(8)

In this particular case, considering the process server’s affidavit of service as supplemented by the process server’s affidavit submitted in opposition to the defendant’s motion (see Galarza v Saddle Cove Assoc., LLC, 22 AD3d 523 [2005]; cf Gurevitch v Goodman, 269 AD2d 355, 355-356 [2000]), a hearing was necessary to determine the issue of whether proper service was effected.

CPLR 3211(a)(8) requires a plaintiff opposing dismissal for lack of personal jurisdiction to make only a prima facie showing that the defendant was subject to the court's jurisdiction.

Alden Personnel, Inc. v. David · filed 2007-03-20(a)(8)

While the ultimate burden of proof rests with the party asserting jurisdiction (see Brandt v Toraby, 273 AD2d 429, 430 [2000]; Roldan v Dexter Folder Co., 178 AD2d 589 [1991]), the plaintiffs, in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), need only make a prima facie showing that the defendant was subject to the jurisdiction of the Supreme Court (see Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]).

Section 3211(e) provides for waiver of personal jurisdiction objections and permits mailing and service upon attorneys as directed by the court.

Gouiran Family Trust v. Gouiran · filed 2007-05-17(e)

In any event, any challenges to lack of personal jurisdiction were waived pursuant to CPLR 3211 (e), and defendants’ default herein was entered more than six months after the acknowledged receipt of the summons by defendant Emile Gouiran in France. Although CPLR 308 (5) provides for special service upon natural persons only, service under CPLR 3211 (e) would have permitted the mailing and service upon the attorneys directed by the court. Thus, service was not improper.

CPLR 3211(a)(8) allows a defendant to seek dismissal for lack of personal jurisdiction.

County of Nassau v. Gallagher · filed 2007-09-18(a)(8)

Accordingly, upon reargument, the Supreme Court properly, in effect, vacated its prior order granting that branch of the defendant’s prior motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction, and properly denied that branch of the defendant’s prior motion.

Section 3211(a)(8) requires a plaintiff opposing a motion to dismiss for lack of personal jurisdiction to make only a prima facie showing that the defendant is subject to the court's personal jurisdiction.

Cornely v. Dynamic HVAC Supply, LLC · filed 2007-10-30(a)(8)

While the ultimate burden of proof rests with the party asserting jurisdiction (see Brandt v Toraby, 273 AD2d 429, 430 [2000]), the plaintiffs, in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the Supreme Court (see Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]).

To oppose a pre-answer motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8), the plaintiff need only make a prima facie showing that jurisdiction exists.

Crystal Cove Seafood Corp. v. Chelsea Harbor, LLC · filed 2008-01-15(a)(8)

To successfully oppose a pre-answer motion to dismiss a complaint pursuant to CPLR 3211 (a) (8), “the plaintiff need only make a prima facie showing that personal jurisdiction exists” (Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]). Here, the plaintiff met its burden with evidence that, at all relevant times, the assignment agreement entered into between the parties was operative.

On a motion to dismiss for lack of personal jurisdiction, the plaintiff must provide sufficient evidence through affidavits and relevant documents to establish jurisdiction.

Fischbarg v. Doucet · filed 2007-12-20(a)(8)

Rather, “[i]f the defendant moves to dismiss due to the absence of a basis of personal jurisdiction, the plaintiff must come forward with sufficient evidence, through affidavits and relevant documents, to prove the existence of jurisdiction” (id.). This is precisely what occurred here.

In an RPTL article 7 tax proceeding, a motion to dismiss for lack of personal jurisdiction cannot be denied solely because it was made after the ordinary deadline for raising that objection, absent prejudice.

Sessa v. Board of Assessors of North Elba · filed 2007-12-20(e)

Thus, respondent’s motion to dismiss, though raised well after the time an objection to personal jurisdiction would be required outside of the RPTL article 7 context, cannot be denied simply on that basis, absent a finding of prejudice.

In an RPTL article 7 proceeding, a respondent waives a personal jurisdiction objection by filing a notice of appearance after the time to answer has expired without preserving the objection.

Nicola v. Board of Assessors of North Elba · filed 2007-12-20(e)

In our view, this voluntary appearance constitutes a submission to Supreme Court’s jurisdiction and, occurring five months after the time to answer expired, operated as a waiver to respondent’s objection to personal jurisdiction (see CPLR 320 [a], [b]; 3211 [e]; but cf. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C320:3, at 280 [concluding that a notice of appearance does not waive a personal jurisdiction objection when served prior to the expiration of the time to answer]).

CPLR 3211(a)(8) supports dismissal of a defendant’s third-party complaints when the plaintiff failed to properly serve that defendant.

Charles v. Long Island College Hospital · filed 2008-01-15(a)(8)

In an action to recover damages for medical malpractice and wrongful death, the defendant third-party plaintiff/second third-party plaintiff appeals from an order of the Supreme Court, Kings County (Rivera, J.), dated August 15, 2006, which granted that branch of the motion of the third-party defendant which was to dismiss the third-party complaint pursuant to CPLR 3211 (a) (8), and granted that branch of the separate motion of the second third-party defendants which was to dismiss the second third-party complaint pursuant to CPLR 3211 (a) (8). Ordered that the order is affirmed, with one bill of costs payable by the defendant third-party plaintiff/second third-party plaintiff to the third-party defendant and the second third-party defendants appearing separately and filing separate briefs.

Section 3211(a)(8) permits dismissal of a complaint against a defendant over whom the court lacks jurisdiction.

Covillion v. Tri State Service Co. · filed 2008-02-05(a)(8)

Accordingly, the Supreme Court properly granted that branch of Bishamon’s cross motion which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (8), since the court did not have jurisdiction over Bishamon.

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when the plaintiff provides no evidence that the defendant was served with process.

Chung v. Yung Tang · filed 2008-02-13(a)(8)

In opposition to that branch of the motion which was pursuant to CPLR 3211 (a) (8), the plaintiff furnished no evidence that the appellant was ever served with the summons and complaint in this action. Accordingly, that branch of the appellant’s motion should have been granted (see CPLR 3211 [a] [8]; [e]; Abrams, Fensterman, Fensterman, Flowers & Eisman, LLP v Alpern, 20 AD3d 497 [2005]; Moustafa v Jamaica Hosp. Med. Ctr, 304 AD2d 539 [2003]).

Section 3211(e) permits a court to strike a defense of lack of personal jurisdiction based on improper service of a petition.

In re Estate of Culbreth · filed 2008-02-13(e)

In addition, the Surrogate properly struck from the answer the defense of lack of personal jurisdiction based on improper service of the petition (see CPLR 3211 [e]).

CPLR 3211(e) does not waive a personal-jurisdiction objection when the defendant’s answer was rejected.

TAZ Productions, Inc. v. Rentacom, Inc. · filed 2008-04-14(e)

If defendant has not answered then the waiver provisions of CPLR 3211 (e) are not applicable, this motion should be granted and the action dismissed. ... Since defendant’s answer was rejected there has been no waiver of defendant’s objection to personal jurisdiction.

A motion to dismiss for lack of personal jurisdiction may require a new hearing when errors affect the determination of whether service was properly effected.

Rocha v. Figueiredo · filed 2008-04-15(a)(8)

The complaint should not have been dismissed insofar as asserted against the defendants estate of Antonio Figueiredo and Maria B. Figueiredo, as executor of the estate of Anthony Figueiredo. Under the particular circumstances of this case, including errors which occurred, a new hearing on the issue of whether service was properly effected against these defendants is required.

CPLR 3211(a)(8) does not support dismissal for improper service when competing affidavits raise an unresolved issue about whether service was proper.

PRA III, LLC v. Gonzalez · filed 2008-09-23(a)(8)

Comparison of the original affidavit of service, referable to the service of the summons with notice, with this second affidavit, raises an issue as to propriety of service that cannot be resolved either on a motion to dismiss the complaint or on a subsequent motion for summary judgment.

CPLR 3211(a)(8) permits dismissal when ineffective service leaves the court without personal jurisdiction over the defendant.

Commissioners of State Insurance Fund v. Khondoker · filed 2008-10-07(a)(8)

Upon reargument, the defendant’s motion pursuant to CPLR 5015 (a) (4) to vacate the clerk’s judgment entered upon his default in appearing or answering, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint, should have been granted.

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 jurisdiction exists.

Lang v. Wycoff Heights Medical Center · filed 2008-10-21(a)(8)

Where a defendant moves to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, a plaintiff “need only make a prima facie showing” that such jurisdiction exists (Cornely v Dynamic HVAC Supply, LLC, 44 AD3d 986 [2007]; see Alden Personnel, Inc. v David, 38 AD3d 697, 698 [2007]; Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]; see also Ingraham v Carroll, 90 NY2d 592, 597-599 [1997]).

CPLR 3211(a)(8) permits dismissal when the defendant was not served with a summons and complaint.

Shea v. Bloomberg, L.P. · filed 2009-08-11(a)(8)

The Supreme Court improvidently exercised its discretion in denying that branch of the appellant’s motion, in effect, pursuant to CPLR 3211 (a) (8) which was to dismiss the complaint insofar as asserted against it and in granting, in the interest of justice, the plaintiffs cross motion pursuant to CPLR 306-b to extend his time to serve the appellant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105 [2001]). The appellant established that it was not served with a summons and complaint.

A plaintiff opposing a CPLR 3211(a)(8) motion and seeking disclosure on personal jurisdiction need only make a sufficient start and show that the claim of jurisdiction is not frivolous.

Shore Pharmaceutical Providers, Inc. v. Oakwood Care Center, Inc. · filed 2009-08-18(a)(8)

Although a plaintiff bears the ultimate burden of proof on the issue of personal jurisdiction (see Cornely v Dynamic HVAC Supply, LLC, 44 AD3d 986 [2007]; Ying Jun Chen v Lei Shi, 19 AD3d 407, 407 [2005]), in opposing a motion to dismiss pursuant to CPLR 3211 (a) (8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth “a sufficient start, and show[ ] their position not to be frivolous” (Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]; see American BankNote Corp. v Daniele, 45 AD3d 338, 340 [2007]; Ying Jun Chen v Lei Shi, 19 AD3d at 408; Cordero v City of New York, 236 AD2d 577 [1997]).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when the plaintiff fails to establish proper service of process.

Pearson v. 1296 Pacific Street Associates, Inc. · filed 2009-11-04(a)(8)

In the absence of proper service of process, the resulting default judgment entered against 1296 Pacific was a nullity (see Ruffin v Lion Corp., 63 AD3d 814, 816 [2009]; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402 [2003]), and the complaint was properly dismissed insofar as asserted against that defendant (see CPLR 3211 [a] [8]).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when the defendant was never served with process.

Henriquez v. Inserra Supermarkets, Inc. · filed 2009-12-15(a)(8)

Accordingly, the appellant’s motion to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction should have been granted, the plaintiffs’ cross motion for leave to extend the time to serve a summons and complaint upon the appellant should have been denied, and the caption should not have been deemed amended.

A CPLR 3211(a)(8) motion may be denied without prejudice to renewal after jurisdictional discovery when the plaintiff makes a sufficient start showing that facts supporting personal jurisdiction may exist.

Castillo v. Star Leasing Co. · filed 2010-01-05(a)(8)

Accordingly, the Supreme Court should have denied that branch of Star Leasing’s motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction, without prejudice to renewal upon the completion of discovery on the issue of whether personal jurisdiction may be established over Star Leasing.

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when service on the defendants was improper.

Lombay v. Padilla · filed 2010-02-23(a)(8)

The plaintiff moved to restrain the defendants from dissipating, secreting, or transferring their assets, and the defendants cross-moved, by notice dated July 14, 2008, to vacate the default judgment and, in effect, pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction. ... Upon excusing the defendants’ default and vacating the judgment entered thereon, the Supreme Court found that the service upon both Padilla and the corporation was improper, and granted that branch of the defendants’ cross motion which was, in effect, to dismiss the complaint. We affirm.

A defendant waives a challenge to personal jurisdiction under CPLR 301 or 302 by omitting that ground from its CPLR 3211 cross motion.

Klein v. Educational Loan Servicing, LLC · filed 2010-03-23

By failing to contend that there was no jurisdiction under either CPLR 301 or 302 over the corporate defendants in their cross motion, the defendants waived their challenge to whether the corporate defendants were subject to personal jurisdiction (see Wiesener v Avis Rent-A-Car, 182 AD2d 372, 373 [1992]; Hatch v Tu Thi Tran, 170 AD2d 649, 650 [1991]; Boswell v Jiminy Peak, 94 AD2d 782, 783 [1983]).

A court may deny a CPLR 3211(a)(8) motion challenging service without a hearing when the defendant offers no specific facts rebutting the process server’s affidavit.

City of New York v. Miller · filed 2010-04-13(a)(8)

The Supreme Court properly denied, without a hearing, the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction. ... Although a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server’s affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits (see Scarano v Scarano, 63 AD3d at 716; Simonds v Grobman, 277 AD2d at 370).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when service was not properly effected.

SYZ Holdings, LLC v. Brecht Forum, Inc. · filed 2010-12-03(a)(8)

As service upon Brecht was not properly effected, the default final judgments should have been vacated as against Brecht pursuant to CPLR 5015 (a) (4), and the petition, insofar as asserted against Brecht, should have been dismissed for lack of personal jurisdiction {see CPLR 3211 [a] [8]).

CPLR 3211(e) treats an objection to personal jurisdiction as waived when it is not raised in opposition to a motion.

Brodsky v. New York City Campaign Finance Board · filed 2011-01-18(e)

Petitioner waived her objection to Supreme Court’s jurisdiction over her by failing to raise it in her opposition to respondent’s motion (see CPLR 3211 [e]; Matter of United Servs. Auto. Assn. v Kungel, 72 AD3d 517, 518 [2010]).

A CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction may be denied without prejudice to renewal after discovery on jurisdiction.

Marist College v. Brady · filed 2011-05-31(a)(8)

Ordered that the order is modified, on the law, by adding to the first decretal paragraph thereof a provision stating that the denial of that branch of the application of the defendants James Madison University and the Commonwealth of Virginia which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction is without prejudice to renewal upon the completion of discovery on the issue of whether personal jurisdiction may be established over those defendants; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

A CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction may be denied without a hearing when service is prima facie established and the movant raises no factual issue about it.

Goldberger v. Gansburg · filed 2011-06-14(a)(8)

The Supreme Court properly denied, without a hearing, the appellants’ motion pursuant to CPLR 3211 (a) (8) to dismiss the petition for lack of personal jurisdiction. The process server’s affidavits of service constituted prima facie evidence of proper service pursuant to CPLR 308 (2) (see Wells Fargo Bank, N.A. v McGloster, 48 AD3d 457 [2008]; 96 Pierrepont v Mauro, 304 AD2d 631 [2003]; Simmons First Natl. Bank v Mandracchia, 248 AD2d 375 [1998]). The appellants neither refuted the prima facie evidence of proper service nor raised a factual issue necessitating a hearing to determine the validity of service of process (see Wells Fargo Bank, N.A. v McGloster, 48 AD3d at 457; Roberts v Anka, 45 AD3d 752, 753-754 [2007]; Simmons First Natl. Bank v Mandracchia, 248 AD2d at 375).

A motion to dismiss for lack of personal jurisdiction requires a hearing on service when the defendant rebuts the process server’s prima facie showing with specific sworn facts.

U.S. Bank, National Ass'n v. Arias · filed 2011-06-21(a)(8)

The defendant’s submission was sufficient to rebut the prima facie showing of proper service, and to necessitate a hearing. Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing to determine whether the defendant was properly served with process pursuant to CPLR 308 (2), and for a new determination thereafter of his motion to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

CPLR 3211(e) allows a party to preserve a lack-of-personal-jurisdiction defense by asserting it in an answer.

Sharma v. New · filed 2011-09-20(e)

Moreover, contrary to the contention of the attorney for the child, the father asserted the defense of lack of personal jurisdiction in his answer and did not waive the defense (see CPLR 3211 [e]; see also 115 Austin Ave, LLC v City of Yonkers, 37 AD3d 684 [2007]; cf. Matter of Ciampi v Sgueglia, 252 AD2d 755, 757 [1998]).

A plaintiff opposing dismissal under CPLR 3211(a)(8) must make a prima facie showing that the defendants are subject to personal jurisdiction.

Daniel B. Katz & Associates Corp. v. Midland Rushmore, LLC · filed 2011-12-27(a)(8)

“While the ultimate burden of proof rests with the party asserting jurisdiction . . . , the plaintiff! ], in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), need only make a prima facie showing that the defendants w[ere] subject to the personal jurisdiction of the Supreme Court” (Cornely v Dynamic HVAC Supply, LLC, 44 AD3d 986, 986 [2007] [citation omitted]; see Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794 [2008]; Alden Personnel, Inc. v David, 38 AD3d 697, 698 [2007]).

A defendant waives an improper-service objection under CPLR 3211(a)(8) by failing to raise it in the main moving papers.

Jerez v. JD Closeouts, LLC · filed 2012-03-20(a)(8)

Finally, defendants’ additional request for dismissal, pursuant to CPLR 3211 (a) (8), on grounds of improper service, is denied as to both JD Closeouts, LLC, and JD Closeouts.com, Inc., due to defendants’ failure to raise such a challenge in their main moving papers.

A plaintiff opposing a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8) need only make a prima facie showing of jurisdiction.

CONSTANTINE, M.D., JEFFREY v. STELLA MARIS INSURANCE COMPANY, LTD · filed 2012-07-06(a)(8)

“While the ultimate burden of proof rests with the party asserting jurisdiction, . . . in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), [plaintiff] need only make a prima facie showing that the defendant [,here, SMI,] was subject to the personal jurisdiction of the Supreme Court” (Cornely v Dynamic HVAC Supply, LLC, 44 AD3d 986, 986). We conclude that plaintiff sustained that burden here, and we therefore affirm.

A plaintiff seeking discovery to oppose dismissal for lack of personal jurisdiction need only make a sufficient, nonfrivolous start, without making a prima facie showing of jurisdiction.

Doe v. McCormack · filed 2012-11-14(a)(8)

However, “in opposing a motion to dismiss pursuant to CPLR 3211 (a) (8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth ‘a sufficient start, and show[ ] their position not to be frivolous’ ” (Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624, quoting Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]).

Section 3211(e) waives an objection to personal jurisdiction if it is not raised in a pre-answer motion or the answer.

Hodson v. Vinnie's Farm Market · filed 2013-02-21(e)

In any event, defendants waived any objection to personal jurisdiction by not raising it in a pre-answer motion or in their answers (CPLR 3211 [e]).

Section 3211 permits a defendant to raise a personal-jurisdiction objection by motion to dismiss after serving a notice of appearance without waiving the objection.

Frederic v. Israel · filed 2013-03-27(a)(8)

Since TIA moved to dismiss in accordance with CPLR 3211, its service of the notice of appearance did not constitute a waiver of the jurisdictional objection, and the Supreme Court should have granted that branch of TIA’s motion which was to dismiss the complaint insofar as asserted against it.

On a motion to dismiss for lack of personal jurisdiction, a sworn denial that rebuts proof of service requires a hearing at which the plaintiff must prove jurisdiction by a preponderance of the evidence.

Rosario v. NES Medical Services of New York, P.C. · filed 2013-04-10(a)(8)

Where, as here, “there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing” ... Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a hearing on, and a new determination of, that branch of the appellants’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction.