N.Y. C.P.L.R. § 3211

Section 3211(e) treats a limitations defense as waived when it is raised in neither a pre-answer motion nor the answer.

Levine v. Grill · filed 2010-01-21(e)

However, any limitations defense was waived by Pita Grill II Inc.’s failure to raise it in either the pre-answer motion it made to vacate the default judgment that plaintiff had obtained against Pita Grill II and dismiss the action for failure to serve process in accordance with CPLR 311 (a) (1), or in the answer Pita Grill II Inc. served pursuant to the stipulation in which it agreed to waive all jurisdictional defenses and plaintiff agreed to vacate the default judgment (CPLR 3211 [e]).

Under CPLR 3211(e), a defendant waives a standing objection by failing to raise it in the answer.

McHale v. Anthony · filed 2010-02-11(e)

Empire’s claim that plaintiffs lack standing to maintain the action by virtue of the settlement with Liberty was not raised in their answer and therefore was waived (CPLR 3211 [e]; see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-243 [2007]); its claim of judicial estoppel is also unpreserved and without merit.

Under CPLR 3211(e), a defendant waives a lack-of-standing defense by failing to raise it in a pre-answer motion or responsive pleading.

Downey Savings & Loan Ass'n, F.A. v. 162 Grand Newburgh LLC · filed 2010-02-11(e)

For the purpose of the waiver rule set forth in CPLR 3211 (e), standing and capacity to sue are sufficiently related that they should be afforded identical treatment. Since defendants did not raise the standing issue in their answer or in a pre-answer motion to dismiss the complaint, they waived any defense based on lack of standing.

A defendant waives an objection to service by failing to raise it in a CPLR 3211 cross motion.

Hodges v. Beattie · filed 2009-12-31

Moreover, defendant waived any contention that he was not properly served with the order to show cause by failing to raise that issue in his cross motion (see CPLR 3211; Page v Marusich, 30 AD3d 871, 873 [2006]; Enright v Vasile, 238 AD2d 543 [1997]).

CPLR 3211(e)’s 60-day deadline for moving to dismiss based on improper service does not apply to an objection based on failure to file.

Goldenberg v. Westchester County Health Care Corp. · filed 2009-12-22(e)

Similarly, the defendants were not obligated to move to dismiss the action within 60 days following the service of their answer pursuant to CPLR 3211 (e),- since their objection was not based on improper service (see Sangiacomo v County of Albany, 302 AD2d 769, 772 [2003]).

Section 3211(e) waives a lack-of-standing defense when a defendant fails to raise it in an answer or a timely pre-answer motion.

Deutsche Bank National Trust Co. v. Jackson · filed 2009-12-08(e)

Having failed to interpose an answer which asserted the defense of lack of standing or to file a timely pre-answer motion raising that defense, the defendant St. Clair Jackson waived such defense pursuant to CPLR 3211 (e) (see HSBC Bank, USA v Dammond, 59 AD3d 679 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2007]).

A defendant does not waive its right to dismissal under CPLR 3211(e) when it relies on agreements underlying the plaintiff’s claims and asserts the dismissal grounds as affirmative defenses.

Leonard v. Gateway II, LLC · filed 2009-12-01(e)

Nor have defendants waived their right to dismissal pursuant to CPLR 3211 (e), as the only documents on which defendants rely are the purchase agreements, which are the foundation of plaintiffs own claims. In any event, defendants clearly asserted as affirmative defenses that plaintiff lacked privity with all defendants but Gateway II, and that the complaint fails to state a cause of action, the very grounds upon which dismissal is premised in this case.

Section 3211(e) waives a defense of lack of legal capacity to sue unless it is raised in the answer or a preanswer motion.

Kaplan v. Queens Optometric Associates, P.C. · filed 2002-04-01(e)

In any event, the defendants waived the defense of the plaintiffs legal capacity to sue pursuant to CPLR 3211 (a) (3) because they failed to assert that defense in the answer or in a preanswer motion as required by CPLR 3211 (e) (see Dougherty v City of Rye, 63 NY2d 989; Central Dover Dev. Corp v Town of Dover, 213 AD2d 367).

CPLR 3211(e) requires a preanswer motion to be timely; an untimely motion must be denied when the movant has not sought leave to serve a late answer.

Jerome v. J.J. Maloney Co. · filed 2002-04-01(e)

The respondents’ preanswer motion failed to comply with the timeliness requirement set forth in CPLR 3211 (e), and they never sought leave to serve a late answer. Therefore, the motion should have been denied.

A stipulation extending the time to answer also extends the time to move under CPLR 3211(c), unless it clearly states a contrary intent.

Tatar v. Port Authority · filed 2002-02-25(c)

The motion was timely since a stipulation which extends the time in which to answer a complaint also extends the time in which to move pursuant to CPLR 3211 (c), unless a contrary intent is clearly stated (see, Rich v Lefkovits, 56 NY2d 276, 279-280; Santos v Chappell, 63 Misc 2d 730).

CPLR 3211(e)’s 60-day waiver period for an improper-service objection applies only when the objection was first raised in a pleading.

Village Square of Penna, Inc. v. Semon · filed 2002-01-24(e)

Nonetheless, we disagree with Supreme Court’s conclusion that the timeliness issue is governed by the 60-day waiver provision of CPLR 3211 (e), which is, by the express language employed in that statute, limited to situations where the objection to improper service has been first raised in a pleading.

A defendant does not waive a lack-of-personal-jurisdiction defense by raising it in a CPLR 3211(a)(8) dismissal application before serving an answer.

Tsirulnik v. Botton · filed 2001-11-19(a)(8)

The plaintiff’s contention that the defendant Nathan Botton waived his affirmative defense of lack of personal jurisdiction is without merit. Botton raised that defense in an application to dismiss before he served his answer (see, CPLR 3211 [a] [8]).

CPLR 3211(e) requires a timely objection to invalid service.

Wajdenfeld v. Wajdenfeld · filed 2001-11-01(e)

To the extent the claim is based on invalid service, she failed to assert a timely objection as required by CPLR 3211 (e).

A party may waive an objection that New York courts lack personal jurisdiction under CPLR 3211(a)(8).

Citadel Management v. Hertzog · filed 2001-10-15(a)(8)

The appellant waived his claim that the New York courts lacked jurisdiction over his person (see, CPLR 3211 [a] [8]).

A defendant waives a statute of limitations defense by failing to raise it in the answer or a preanswer motion to dismiss.

Camp Shiloh, Inc. v. County of Sullivan · filed 2001-04-19(a)(5), (e)

Fundamentally, however, a party must raise the legal argument of Statute of Limitations in its answer to a complaint or in a preanswer motion to dismiss (see, CPLR 3211 [a] [5]; [e]) and the failure to do so constitutes a waiver thereof (see, Dougherty v City of Rye, 63 NY2d 989, 991; Mendez v Steen Trucking, 254 AD2d 715, 716).

Section 3211(e) does not automatically waive a pending-action defense merely because the answer does not expressly name it.

Mt. Sinai Medical Center v. Empire Blue Cross & Blue Shield · filed 2001-04-03(e)

We reject plaintiffs’ claim that defendant’s CPLR 3211 (a) (4) defense was waived as a matter of law under CPLR 3211 (e) because it was not asserted in defendant’s answer.

A motion under CPLR 3211(b) to dismiss an affirmative defense is not subject to the 120-day deadline for summary judgment motions.

Seifried v. Seifried · filed 2001-03-05(b)

As such, those portions of the motion and cross motion which seek summary judgment are denied as untimely. All is not lost, however, since the plaintiff also moves for certain relief pursuant to CPLR 3211 (b), a provision not subject to the 120-day time frame.

Section 3211(e) requires a personal jurisdiction objection to be raised in a motion or answer to avoid waiver.

Frankel v. Siravo · filed 2000-12-12(e)

Plaintiffs claim that personal jurisdiction was not obtained over her in connection with defendant’s custody enforcement application has been waived in view of her general appearance in the matter and her failure to raise her jurisdictional objections in a motion or her answer pursuant to CPLR 3211 (e) (CPLR 320 [b]).

Section 3211(e) requires a defendant relying on a particular statute-of-limitations defense in a post-answer motion to have pleaded that defense in its answer.

Foley v. New York Blood Center, Inc. · filed 2000-12-07(e)

Defendant’s motion to dismiss on the ground of CPLR 214-c was properly denied without prejudice where defendant had served an answer that pleaded only CPLR 214, not CPLR 214-c, as a time bar (see, CPLR 3211 [e]).

Section 3211(e) provides for waiver of a challenge to service.

Haque v. Pocchia · filed 2000-12-06(e)

Tenants’ challenge to service was waived (CPLR 3211 [a] [8]; [e]; Urena v NYNEX, Inc., 223 AD2d 442).

Section 3211(e) requires a party to raise res judicata and collateral estoppel defenses in a reply to a counterclaim or in a timely motion to dismiss the counterclaim, or waive them.

In re Hall · filed 2000-09-29(e)

By failing either to plead those defenses in a reply to the counterclaim, or to make a timely motion to dismiss the counterclaim on those grounds, petitioner has waived her right to assert those defenses (see, CPLR 3211 [e]; Ouyang v Jeng, 260 AD2d 618, 619-620; Pace v Perk, 81 AD2d 444, 461-462; see also, Mayers v D’Agostino, 58 NY2d 696, 698).

CPLR 3211(e) requires a defendant to move to dismiss within the prescribed time to preserve an improper-service defense.

Bennardo v. Del Monte Caterers, Inc. · filed 2000-07-24(e)

However, the Supreme Court should have granted that branch of their motion which was to dismiss the affirmative defense of improper service of process asserted by the defendant Frank Catapano, as he failed to move to dismiss the complaint insofar as asserted against him within the time required by CPLR 3211 (e) (see, Fleet Bank v Riese, 247 AD2d 276).

CPLR 3211(e) requires a statutory limitations defense to be raised before answering or in responsive pleadings, but that requirement does not apply to a contractual claim period.

Schmal v. McCulla · filed 2000-07-20(e)

Although the viability of a Statute of Limitations defense requires assertion either in a pre-answer CPLR 3211 motion to dismiss or as an objection in responsive pleadings (CPLR 3211 [e]; Held v Kaufman, 91 NY2d 425), the statute, by its terms, does not apply to what is only a contractual, and not a statutory, provision.

CPLR 3211(e) requires a defendant to move on an improper-service defense within the statutory period; failing to do so and actively litigating waives the defect.

Powell v. Jaysons Construction & Interiors, Inc. · filed 2000-06-30(e)

Mr. Simoncic, who made no motion addressed to a lack of personal jurisdiction defense within the time prescribed by statute (see, CPLR 3211 [e]), fully participated in the defense of this litigation. ... He did not do so and, instead, actively participated in this litigation, thereby waiving what was originally a jurisdictional defect.

Section 3211(e) waives a pending-action dismissal defense unless it is raised by motion before the responsive pleading or in the responsive pleading itself.

Green Point Savings Bank v. Clarke · filed 1995-10-31(e)

However, this defense is waived if, as here, it is not asserted in a motion prior to serving the responsive pleading or in the responsive pleading itself (see, CPLR 3211 [e]).

A defense waived under CPLR 3211(e) because it was omitted from a motion or responsive pleading may still be added by amendment.

Marks v. Macchiarola · filed 1995-11-16(e)

Leave to amend "shall be freely given” "at any time” (CPLR 3025 [b]), even as to defenses deemed "waived” pursuant to CPLR 3211 (e) when not raised " 'either by * * * motion or in the responsive pleading.’ ” (Pegno Constr. Corp. v City of New York, 95 AD2d 655, 656.)

Section 3211(e) permits a court to allow a waived dismissal ground in an amended answer when the defense is meritorious and the plaintiff will not be prejudiced.

Mindich Developers, Inc. v. Milstein · filed 1995-02-08(e)

Notwithstanding the waiver provision of CPLR 3211 (e), a ground set forth in CPLR 3211 (a) (1), (3) and (5) may be presented by leave of the court in an amended answer where the defense is meritorious and there is no prejudice to the plaintiff.

A defendant waives an objection that the plaintiff is not the proper party by failing to raise it in the answer or a pre-answer motion to dismiss.

Central Dover Development Corp. v. Town of Dover · filed 1995-03-06(e)

The Town waived the defense that the plaintiff was not a proper party by failing to raise this claim in its answer or in a pre-answer motion to dismiss the complaint (see, CPLR 3211 [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656).

Section 3211(e) requires a standing objection to be raised in the answer or a pre-answer motion to dismiss; otherwise, it is waived.

National Ass'n of Independent Insurers v. State · filed 1994-12-27(e)

We find that the State waived this argument by failing to raise it in its answer or in a pre-answer motion to dismiss (see, Dougherty v City of Rye, 63 NY2d 989; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656; CPLR 3211 [e]).

An objection to timely commencement is waived if the respondent does not raise it by motion or in a responsive pleading.

Isabella v. Hotaling · filed 1994-08-29(a)(5), (e)

We therefore find that because Piscitelli neither moved to dismiss the invalidation petition nor raised such an objection in a responsive pleading, Piscitelli has waived any objection as to the timely commencement of Isabella’s invalidation petition (see, CPLR 3211 [a] [5]; [e]).

Section 3211(e) treats a statute of limitations defense omitted from the answer as waived.

Cameron v. 1199 Housing Corp. · filed 1994-10-25(e)

Defendants-appellants’ motion for leave to include the Statute of Limitations as a defense in their answer was made approximately six years after they served their answer, after plaintiff, relying on their waiver of that defense for failure to ...include it in their answer (CPLR 3211 [e]), had engaged in motion practice and disclosure, placed the case on the calendar, and otherwise spent considerable time and expense preparing for trial.

Section 3211(e) requires a defendant to raise collateral estoppel by motion or in the responsive pleading; an unpleaded defense cannot support summary judgment even if it arose after the answer.

Brotherton v. New York State Supply Corp. · filed 1965-12-02(e)

CPLR 3211 (subd. [e]) provides, in part: "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”. Collateral estoppel and res judicata are included in CPLR 3211 (subd. [a], par. 5). ... We are here confronted with a situation in which the defense of collateral estoppel was not available to the defendant at the time its answer was drafted and served, but has since then become available to it, and the affirmative defense is not pleaded. ... the court is constrained to conclude that the motion for summary ... judgment on the ground of collateral estoppel should be denied.

Section 3211(e) permits a motion for failure to state a cause of action at any time, so the objection is not waived by raising it later in the action.

Strout Realty v. Phillipson · filed 1966-03-12(e)

Pursuant to CPLR 3211 (subd. [a], par. 7) a party may move for judgment dismissing a cause of action if the pleading fails to state a cause of action, and under subdivision (e), the motion made may be made at any time. It is, therefore, not waived by failure to raise the question earlier in the action.

A timely motion under CPLR 3211(a)(2) and (7) may be granted with leave to amend.

Cirincione v. State · filed 1966-04-29(a)(2), (a)(7)

The State of New York moves to dismiss this claim pursuant to CPLR 3211 (subd. [a], pars. 2, 7). The motion is timely made. ... Accordingly, the motion of the State is granted with leave to claimant to amend and file her claim within 30 days of receipt of the order with notice of entry.

Section 3211(e) waives a statute of limitations defense omitted from both an earlier motion to dismiss and the responsive pleading.

Scheeler v. Buffalo Wire Works Co. · filed 1966-05-03(e)

Here, respondents made a prior motion to dismiss the petition, which was denied, and failed to allege the Statute of Limitations in their answer as an affirmative defense. Therefore this second motion, seeking to dismiss the petition because of the Statute of Limitations, is waived.

Section 3211(e) does not waive defenses concerning a plaintiff’s interest or the absence of necessary parties in these circumstances.

Heimer v. Johnson, Drake & Piper, Inc. · filed 1966-06-06(e)

Defendants’ defenses with regard to the interest of .coplaintiff John Coppola and the alleged absence of necessary parties have not been waived under CPLR 3211 (subd. [e]).

CPLR 3211(e)'s waiver rule does not bar an amended answer pleading release as an affirmative defense.

Rainone v. France · filed 1966-10-20(e)

Equally tenuous is the argument that relief under CPLR 3025 (subd. [b]) is barred by CPLR 3211 (subd. [e]) as to waiver of certain defenses not raised in the responsive pleading or by motion to dismiss made prior thereto.

Section 3211(e) permits a failure-to-state-a-cause-of-action objection to be raised after the answer, including at trial.

In re the Estate of Lipsit · filed 1966-05-20(e)

The first question to be considered is the timeliness of Barn-hard’s oral motion under CPLR 3211 (subd. [a], par. 7) to dismiss the petition on the ground that it fails to state a cause of action. CPLR 3211 (subd. [e]) provides that such an objection or defense is not waived if not raised by a motion prior to service of the answer or in the answer, but may be raised by a motion made at any subsequent time.

CPLR 3211(e) bars a second motion to dismiss after a prior motion was decided on the merits, even when the second motion raises the Statute of Limitations for the first time.

Ross v. Epstein · filed 1966-07-05(e)

Under these circumstances, CPLR 3211 (subd. [e]) effected a waiver of defendants’ right to make a second motion pursuant to CPLR 3211.

Section 3211 permits only one motion to dismiss, but a court may overlook an imprecise jurisdictional objection when the moving papers clearly identify the defect and cause no prejudice.

Kelly v. Stanmar, Inc. · filed 1966-08-30(e)

Since there is only one motion permitted under CPLR 3211, Stanmar has technically precluded itself from urging lack of jurisdiction under CPLR 314 (subds. 2 or 3). Yet, the court also notes that plaintiff, himself, was uncertain as to the type of jurisdiction that he was asserting. Under the circumstances, the court will overlook any error since the moving papers described the alleged defect sufficiently clearly to apprise the plaintiff of its nature and thus will not result in any prejudice to him (4 Weinstein-Korn-Miller, 3SL Y. Civ. Prac., par. 3211.22; CPLR 2001).

An objection that a CPLR 3211(a)(8) motion was made after the answer may be waived if it was not raised in the referral order or the papers on which that order was based.

Hertz, Newmark & Warner v. Fischman · filed 1967-03-22(a)(8)

At the outset of the hearing an issue was raised as to the timeliness of this motion under CPLR 3211 (su-bd. [a], par. 8) inasmuch as the motion was made after answer. However, such an objection not having been raised either in the order of November 2, 1966 or in the papers on which that referral order was predicated, the plaintiff will be deemed to have waived its objection thereto and such objection raised at this time will not be considered.

A defendant may move under CPLR 3211 after answering without pleading a documentary-evidence defense when, under the circumstances, the motion addresses the sufficiency of the complaint.

Allied 31st Avenue Corp. v. City of New York · filed 1967-04-24

We do not consider that the defendants ... waived their right to move to dismiss the complaint on the ground of a defense founded upon documentary evidence because they failed to make such a motion prior to answer and did not allege the defense in their answer (CPLR 3211). Under the circumstances of this case, we deem the motion to be addressed to the sufficiency of the complaint, rather than a motion based on new matter which should properly be pleaded as a defense or be the subject of a motion prior to answer.

A defendant who moves to dismiss on another ground waives a personal jurisdiction objection unless the defendant raises it in that motion.

Dominion of Canada General Insurance v. Pierson · filed 1967-05-31(e)

The above sentence from CPLR 3211 (subd. [e]) is in the disjunctive and an objection, under paragraph 8 of subdivision (a), that the court has no jurisdiction of the person of the defendant may be raised by way of answer only where the defendant has not moved on any of the other grounds set forth in subdivision (a).

Section 3211(e) permits a defendant to preserve a personal jurisdiction objection in an amended answer served as of right when the amendment causes no prejudice.

Solarino v. Noble · filed 1967-12-15(e)

It is the opinion of this court that by the words ‘ ‘ responsive pleading” in the CPLR the Legislature intended to have the issues drawn based upon those pleadings which remain in the case and upon which issue is joined. The original answer, after service of the amended answer, is no longer part of the case for this purpose. The motion is accordingly denied.

A CPLR 3211 motion challenging the sufficiency of a divorce cause of action must await completion of conciliation proceedings and service of a complaint.

Tortorice v. Tortorice · filed 1968-01-09

But-1 believe also that to further the purposes of conciliation procedures embraced in the Divorce Reform Law any application such as this addressed to the sufficiency of a cause of action should await completion of the conciliation proceeding and service of a complaint. The motion is therefore denied without prejudice to renewal when and if a complaint is served by plaintiff.

CPLR 3211(e) requires a defendant to move to dismiss for lack of personal jurisdiction before serving a responsive pleading; an objection raised in the answer must instead be pursued as a defense.

Wahrhaftig v. Space Design Group, Inc. · filed 1968-01-12(e)

The motion, not being made “ before service of the responsive pleading” (CPLR 3211, subd. [e]), was not timely and should have been denied on that ground.

Section 3211(e) does not waive a personal jurisdiction defense when a defendant withdraws a dismissal motion and pleads the defense in the answer.

Powsner v. Mills · filed 1968-01-30(e)

The fact that the defendant chose in the first instance to proceed by way of motion which was thereafter withdrawn does not constitute a waiver of the defense. Nothing contained in CPLR 3211 (subd. [e]), which sets forth in specific detail all of the instances in which defenses are waived, can be read as mandating a waiver in the circumstances herein presented.

Section 3211(e) requires a motion to dismiss for lack of personal jurisdiction to be served by the time the answer is due.

Smith v. Pach · filed 1968-06-24(e)

The motion was not timely made because it was served after the time when service of the answer was required (CPLR 3211, subd. [e]).

Section 3211(e) provides that a statute-of-limitations defense is waived if it is not raised in a responsive pleading or a motion to dismiss.

Gauthier v. Village of Larchmont · filed 1968-07-08(e)

However, the right to assert the defense of the Statute of Limitations is waived where it is not set forth in a responsive pleading or does not form the basis for a motion to dismiss (CPLR 3018, subd. [b]; CPLR 3211, subd. [e]; Dunning v. Dunning, 300 N. Y. 341).

Section 3211(f) measures the 10-day period to answer after denial of a motion to dismiss from service of notice, and omission of the entry date does not delay that period when the defendant knew the date.

Roach v. County of Albany · filed 1968-07-08(f)

The simple omission to furnish defendant the entry date, which it must be deemed to have known in any case, could in no way affect the duty of the defendant to respond within 10 days after the order was served upon it.

Section 3211(f) extends the time to answer until 10 days after service of notice of entry of an order denying a motion to dismiss.

Schwartz v. Wikler · filed 1969-01-13(f)

Appellants’ time to answer had been extended, under CPLR 3211 (subd. [f]) until 10 days after service of notice of entry of the order denying their motion to dismiss the complaint.

Section 3211(e) requires a defendant to raise a personal jurisdiction objection in a timely motion or responsive pleading, or waive it.

Venizelos v. Venizelos · filed 1968-07-15(e)

Objection to in personam jurisdiction must be raised either by motion under CP-LR 3211 (subd. [a], par. 8) prior to the time service of the responsive pleading is required or in the responsive pleading itself (subd. [e]). The failure of a party to avail himself of one of the two alternatives constitutes a waiver of the objection.

Section 3211(e) does not make a motion to dismiss untimely where the State need not serve an answer in the Court of Claims and the prior action had not yet been finally determined.

Albero v. State · filed 1968-12-26(e)

While not seriously urged by respondent, he makes the additional untenable claim that appellants’ motion was not timely made under CPLR 3211 (subd. [e]). ... Under rule 13 of the Rules of the Court of Claims “all allegations in the claim are treated as denied” and there is no requirement that the State serve an answer. In any event this motion for dismissal could not have been made until the final determination of the prior action.

A defendant may make a motion to dismiss under Section 3211 before answering the complaint.

Law Research Service, Inc. v. Honeywell, Inc. · filed 1969-03-11(e)

Defendant’s instant cross-motion was properly made before answer (CPLR 3211, subd. [e]) -and was treated by the Special Term as one for summary judgment (CPLR 3211, subd. [c]).

A motion to dismiss for lack of subject matter jurisdiction may be made, heard and determined at any time during the proceeding.

Finkelstein v. State · filed 1969-07-08(a)(2), (e)

Though the court notes with regret that trial time was used and witnesses were produced and heard before the motion to dismiss was made, such a motion can be made, heard and determined at any time during the proceeding.

A motion to dismiss an amended complaint is timely when made after the amendment is allowed and before a responsive pleading is due.

Murphy v. Erie County · filed 1969-10-06(e)

On September 26,1969, the return day of both motions herein, plaintiffs’ motion to serve the amended complaint was granted, then argument was heard to dismiss it for insufficiency and res judicata. Certainly defendants ’ motion against this amended complaint was timely.

Section 3211(f) gives a party whose motion to dismiss is denied an opportunity to answer.

Lakeland Water District v. Onondaga County Water Authority · filed 1969-04-16(f)

The court denied the motion and thereby accorded the appellant a right to interpose an answer (CPLR 3211, subd. [f]; 7804, subd. [f]).

Section 3211(e) treats a defendant’s failure to raise lack of personal jurisdiction in an answer as a waiver of that objection.

Suriano v. Hosie · filed 1969-07-08(e)

Having chosen to appear without raising the issue of the court’s jurisdiction over his person in his answer, as authorized by CPLR 3211 (subd. [a], par. 8) the defendant has waived his right to litigate that issue now.

Section 3211(e) permits a party to raise lack of personal jurisdiction by motion or in a responsive pleading; failing to raise it in an answer to a cross complaint loses the defense.

Bides v. Abraham & Strauss Division of Federated Department Stores, Inc. · filed 1969-10-20(e)

The defense of lack of personal jurisdiction may be raised either by motion or in the responsive pleading (CPLR 3211, subd. [e]). Failure to so raise the defense constitutes an appearance (CPLR 320, subd. [b]). An answer is the required responsive pleading to a cross complaint (CPLR 3011).

Section 3211(e) waives a statute of limitations defense that is not raised by motion or in the responsive pleading; counsel’s neglect does not revive it after trial.

von Engelbrechten v. Galvanoni & Nevy Bros. · filed 1969-07-18(e)

Suffice to say the alleged mistake or neglect of counsel resulting in a statutorily imposed waiver (CPLR 3211, subd. [e]) followed by a trial of the issues is not such a situation.

Section 3211(e) permits a defendant to move to dismiss before serving an answer.

Kearney v. Atlantic Cement Co. · filed 1969-12-11(e)

Contrary to the contentions advanced, defendant had the right to make its motions before service of the answers (CPLR 3211, subd. [e]; 4 Weinstein-Korn-Miller, IT. Y. Civ. Prae., par. 3211.01; Waehtell, New York Practice under the CPLR [2d ed.], p. 169) and this appeal should not be dismissed, since an appeal lies from an order made upon a motion to dismiss a cause of action or a defense under CPLR 3211, whether the motion is granted or denied (CPLR 5701, subd. [a], par. 2, [v]; Simmons v. Capra, 273 App. Div. 83, 88; Adreanee v. Lorentzen, 269 App. Div. 987; 10 Carmody-Wait 2d, New York Practice, p. 302; cf. Sirlin Plumbing Co. v. Maple Sill Somes, 20 N I 2d 401).

An appearing defendant must raise objections through CPLR 3211 or waive them.

Rizika v. Board of Assessors · filed 1970-04-20

If defendant appears, ¡he must raise his objections in the manner set forth in CPLR 3211 or they are waived.

A stipulation extending the time to answer also extends the time to move to dismiss unless it clearly states otherwise.

Santos v. Chappell · filed 1970-08-03(e)

A stipulation which extends the time in which to answer a complaint also extends the time in which to move, unless a contrary intent is clearly stated.

A defendant may plead a counterclaim without waiving an affirmative defense of lack of personal jurisdiction under CPLR 3211(a)(8).

Buckley & Kisseloff v. Feldcos Realty Corp. · filed 1970-10-15(a)(8)

The pleading of a counterclaim with an affirmative defense of lack of jurisdiction is not a submission by the defendants to the jurisdiction of the court.

Section 3211(f) governs the time to answer after a motion to dismiss is denied.

Caso v. Gotbaum · filed 1971-08-05(f)

Since the union officials’ motions to dismiss are denied, they will be given 10 days to file their answers to the complaint, and the matter will thereafter proceed according to law. (CPLR 3211, subd. [f].)

Section 3211(f) gives a defendant 10 days after service of an order denying a motion to dismiss to submit answering papers.

L & O Homes Inc. v. Brown · filed 1971-09-30(f)

Defendant has 10 days after service of the order denying her motion to dismiss to submit answering papers in opposition to plaintiff’s motion for summary judgment in lieu of complaint (CPLR 3211, par. [f]).

Section 3211 permits dismissal on res judicata grounds, but the objection is waived unless raised before the responsive pleading or in that pleading.

Donato v. Cataffo · filed 1972-03-28(a)(5), (e)

CPLR 3211 (subd. [a]) states that a motion to dismiss may be made (par. 5) on the ground that the cause of action may not be maintained because of res judicata and under subdivision (e) that the objection is waived unless raised either by motion before service of the responsive pleading or in the responsive pleading. While an examination of the pleadings herein indicates that no prior motion was made nor did the defendants" raise the objection of res judicata in their answer, and accordingly are not entitled to the relief1 they are seeking, nevertheless, the court may grant summary judgment to a party even in the absence of a cross motion (22 West Main St. v. Boguszewski, 34 A D 2d 358, 360), citing CPLR 3212 (subd. [b]).

Subdivision (e) prevents a party whose pre-answer motion to dismiss on res judicata grounds was denied from pleading the same defense in its answer.

Masterson v. Valley National Bank of Long Island · filed 1972-04-05(e)

Subdivision (e) of CPLB 3211 allows a party to either move to dismiss a pleading on the ground that a cause is barred by res judicata before a responsive pleading is served, or, that it be pleaded as an affirmative defense in the responsive pleading. It does not permit both a motion to dismiss and then, if the party is unsuccessful on the motion, to plead res judicata as an affirmative defense in a responsive pleading.

CPLR 3211(e) permits a party to move to dismiss for lack of subject matter jurisdiction at any time.

Wildeb Rest. Inc. v. Jolin Restaurant, Inc. · filed 1972-04-26(e)

Furthermore, CPLR 3211 (subd. [e]) permits a party to move to dismiss a cause of action on the ground that the court has not jurisdiction of the subject matter of the cause of action at any time.

A motion to dismiss made before the responsive pleading is due is timely, and a denial without prejudice permits prompt renewal.

Murray Director Affiliates v. Laventman · filed 1972-06-05(e)

The motion to dismiss was originally made on March 15, i.e., a “time before service of the responsive pleadings (was) required,” (subd. [e] of CPLR 3211). Its denial was without prejudice to renewal, which was done promptly.

A statute of limitations defense is waived if it is not raised by motion or in the responsive pleading; whether the defendant knowingly waived it may be a question of fact.

Gartenberg v. St. Paul Fire & Marine Insurance · filed 1972-09-26(e)

CPLR 3211 (subd. [e]) provides the defense is waived if not asserted by a motion or in the responsive pleading. ... The record presents the question of fact whether the defendant with knowledge of the pertinent facts failed to avail itself of the short Statue of Limitations provided in its policy in accordance with the above provisions of the CPLR.

Section 3211 permits a defendant to raise a statute-of-limitations defense by motion without also objecting to personal jurisdiction.

Goodemote v. McClain · filed 1972-11-02(e)

Special Term determined that under subdivision (e) of CPLR 3211 defendant waived the defense of the Statute of Limitations by making a general appearance and moving under paragraph 5 of subdivision (a) of CPLR 3211 without raising objection under paragraph 8 thereof. This was an erroneous interpretation of the motion and of that section. Defendant did not, and had no reason to, contend that the court has no jurisdiction of the person (subd. [a], par. 8), for defendant was personally served in this State. She merely urged that the Statute of Limitations had run on the cause of action, and this contention she had the right to make by motion without reference to paragraph 8.

A limitations defense raised in substance is not waived merely because the defendant identified the wrong time period, provided correcting the ground does not prejudice the opposing party.

Santaniello v. De Francisco · filed 1973-06-04(e)

Yet, the court believes that in substance, defendants pleaded untimeliness. The incorrect designation of grounds for relief may be cured by treating the proper ground as having been raised, provided that the opposing party is not prejudiced by the delay or lack of notice.

CPLR 3211(e) waives a lack of personal jurisdiction defense when a defendant omits it from a motion to dismiss.

Sternshuss v. Sternshuss · filed 1972-10-03(e)

Defendant’s “request” for leave to interpose a defense of lack of in personam jurisdiction is denied; defendant has waived that defense by failing to include it in the instant motion.

CPLR 3211(e) does not waive an affirmative defense omitted from an answer or dismissal motion when the complaint did not fairly disclose the cause of action to which the defense applies.

Belott v. State · filed 1972-10-19(e)

Appellant’s argument that respondent made a knowing waiver of this defense by failing to raise it in his answer or by a 3211 motion to dismiss, must also be rejected. Before a party can be said to have waived a defense, he must be fairly apprised of the cause of action to which that defense would be interposed.

A motion to dismiss one cause of action extends the time to answer all causes of action in the complaint.

United Equity Services, Inc. v. First American Title Insurance · filed 1973-08-02(f)

In the Practice Commentary (McKinney’s Cons. Laws of N. Y., Book 7B, CPLR 3211, 03211:72, p. 78) Professor Siegel sets forth “the better construction would be that a CPLR 3211 motion made against any part of a pleading extends the time to serve a responsive pleading to all of it * * * Thus, where defendant moves to dismiss cause of action #1, he should be able to rely on subdivision (f) and its extension of time to serve his answer -to the other causes of action.” ... This court concurs with the afore-mentioned rationale in interpreting CPLR 3211 (subd. [f]).

A timely CPLR 3211(a) motion to dismiss extends the time to answer until ten days after service of the order with notice of entry.

Kassuto v. Yalon · filed 1974-02-07(f)

On the last day to ,serve a responsive pleading, the defendant initiated this motion to dismiss under paragraph 8 of subdivision (a) of CPLR 3211 thus bringing himself within the purview of subdivision '(f) of CPLR 3211. Accordingly, the defendant’s motion and the plaintiff’s cross motion are ¡both denied. Defendant shall serve his answer 10 days after service of a copy of the order with notice of entry.

A Statute of Frauds defense must be affirmatively pleaded in the answer or it is waived.

Term Vehicle Leasing Corp. v. J. P. R. Auto Sales Corp. · filed 1974-04-10(e)

Said defense must be affirmatively pleaded in the answer or it is waived (CPLR 3211 subds. [a], [e]). Since the defense was not affirmatively pleaded in this case, there is no bar to prove a relationship of surety.

Section 3211(e) requires a defendant to raise an objection to jurisdiction by motion or in its answer within 20 days after service of the complaint, or waive the objection.

Ellis v. Board of Education of Ithaca City School District · filed 1974-11-27(e)

The immediate service of the complaint would have cleared up the confusion since defendant, pursuant to CPLR 3211 (subd. [e]), would have been required to respond within 20 days either by motion to dismiss on that ground or by objection in its answer, otherwise the objection would have been waived.

Section 3211(e) permits a party to waive a Statute of Limitations defense by failing to raise it in an answer or by motion to dismiss.

Hans v. Burns · filed 1975-06-05(e)

Furthermore, it is likewise clear that the board failed to raise the defense of the Statute of Limitations either in its answer or by motion to dismiss. In such circumstances, we deem the defense to be waived (CPLR 3211, subd [e]; ...).

Section 3211(e) waives a statute of limitations defense unless it is raised by a timely motion to dismiss or in the responsive pleading.

Mangano v. Hanna · filed 1975-07-09(e)

CPLR 3211 permits a motion to dismiss on the grounds of the Statute of Limitations to be brought but CPLR 3211 (subd [e]) states that any such defense is waived unless raised either by such motion or in the responsive pleading.

Section 3211(e) treats a statute of limitations objection as waived if it is not raised in a responsive pleading or motion to dismiss.

Ruiz v. Lavine · filed 1975-07-18(e)

However, since neither respondent has chosen to raise this objection by either a responsive pleading or a motion to dismiss the petition, the objection is waived (CPLR 3211, subd [e]).

A motion to dismiss extends the defendant’s time to answer until 10 days after service of notice of entry of the order.

Schwartz v. Lubitz · filed 1976-03-01(f)

A motion under CPLR 3211 (subd [a]) extends the defendant’s time to answer until 10 days after service of notice of entry of the order (CPLR 3211, subd [f]). Accordingly, it was error to grant plaintiffs’ application for summary judgment based upon defendant’s default in answering.

Section 3211’s waiver provisions do not bar a defendant from raising a foreign corporation’s failure to qualify to do business in New York, even after asserting a counterclaim.

Paper Manufacturers Co. v. Ris Paper Co. · filed 1976-03-19(e)

Turning first to the procedural point, there is no waiver worked by the provisions of CPLR 3211, nor by defendant’s interposition of a counterclaim (Ac-Tin-O-Lyte Roofing Co. v Werner, 209 App Div 742; American Can Co. v Grassi Contr. Co., 102 Misc 230, but see Angldile Computing Scale Co. v Gladstone, 164 App Div 370, 375).

A CPLR 3211(a)(4) motion based on another pending action is waived if made after the movant serves a responsive pleading, even if that pleading raises the defense.

Theatre Confections, Inc. v. Cate Enterprises · filed 1976-06-10(a)(4)

Cate has waived its right to move pursuant to CPLR 3211 (subd [a], par 4). According to subdivision (c) of CPLR 3211, such a motion must be made prior to service of the moving, party’s responsive pleading. Even if the responsive pleading includes the appropriate affirmative defense, a CPLR 3211 (subd [a], par 4) motion appears to be waived if made after service of such pleading.

Section 3211(e) permits a defendant who preserved a personal jurisdiction objection in the answer to move to dismiss on that ground afterward.

Salerno v. Kearney · filed 1976-06-24(e)

The language of that subdivision does not specifically prevent a defendant from making a motion to dismiss after insertion of the objection in the answer.

Section 3211(e) provides that a statute of limitations defense is waived if it is neither pleaded in the answer nor raised by timely motion.

Grabicki v. Penn York Construction Corp. · filed 1976-12-30(e)

We agree with Special Term that the Statute of Limitations is an affirmative defense (CPLR 3018) and not having pleaded it in the answer or raised it by motion prior to the time limitation, the third-party defendant waived it (CPLR 3211, subd [e]).

CPLR 3211(e)'s one-motion rule bars a party from later challenging a cause of action it did not specifically challenge in an earlier motion.

Schwartzman v. Weintraub · filed 1977-02-03(e)

Moreover, under the one motion rule of CPLR 3211 (subd [e]), the appellants have relinquished their right to challenge the second cause of action for fraud.

CPLR 3211(e) permits a defendant to raise a Statute of Limitations defense in the answer when the defense has not yet been waived.

McManus v. McManus · filed 1977-12-15(e)

We agree with Special Term to the extent that plaintiff made an inadequate showing of entitlement to the appointment of a receiver, but disagree with its conclusion that defendants waived any defense based upon applicable Statutes of Limitations since such a defense may yet be raised in their answer (CPLR 3211, subd [e]).

Section 3211(e) waives a defense of lack of legal capacity to sue unless it is raised by a motion to dismiss or in the responsive pleadings.

McClelland v. Robinson · filed 1978-02-16(e)

Nor may the defense of lack of legal capacity to sue (CPLR 3211, subd [a], par 3) be now raised since it is waived unless raised by motion to dismiss or in the responsive pleadings (CPLR 3211, subd [e]).

A defendant preserves a CPLR 3211(a)(5) defense by raising it in the answer.

Casucci v. Village of Wappingers Falls · filed 1978-05-29(e)

Clearly, defendants did not waive their defenses under CPLR 3211 (subd [a], par 5), since such objections were raised in their answer (see CPLR 3211, subd [e]).

Section 3211(f) gives a defendant a 10-day extension to answer when a motion to dismiss is made within the time to answer, but a motion made after that time expires does not extend it.

Kirschenbaum v. Gianelli · filed 1978-06-08(f)

Although the motion to dismiss under CPLR 3211 (subd [a], par 2) could be timely made after the time to answer had expired, interposition of this motion cannot be used as a subterfuge to extend the time to answer after a default. If this motion had been made within the time to answer, then defendants would have been entitled to a 10-day extension to answer under CPLR 3211 (subd [f]). The Justice Court was not under a duty to extend the time to answer in this case since the motion was made after expiration of the period for response.

Section 3211(f) extends a defendant’s time to answer while its motion to dismiss is pending.

Lipary v. Posner · filed 1978-09-25(f)

By virtue of their motions against the complaint, defendants’ times to answer the complaint were automatically extended until after the motions were decided. (CPLR 3211, subd [f].) Plaintiff was therefore free to amend the complaint as of course, as he has done.

CPLR 3211(e) waives certain defenses when they are not raised by motion before answering or in the answer.

World Literature Crusade v. Hayner · filed 1979-07-05(e)

We agree with the conclusion of Special Term that the defense of legal incapacity to sue and a defense founded upon documentary evidence were waived pursuant to CPLR 3211 (subd [e]) and 3012 by not raising such issues by motion prior to answering and/or not raising them in the answers.

Section 3211(e) allows a defense that the complaint fails to state a cause of action to be raised at any time, even if it was not pleaded in the answer.

Konow v. Sugarman · filed 1979-09-28(e)

The pleading of that defense is surplusage, as it may be asserted at any time even if not pleaded (CPLR 3211, subd [e]; see Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:38, 1978-1979 Supp, p 8).

Section 3211(e)'s single motion rule permits separate motions to dismiss when different parties assert distinct causes of action in separate pleadings.

Nassau Roofing & Sheet Metal Co. v. Celotex Corp. · filed 1980-02-14(e)

Initially, we cannot agree with FDC that the instant motion to dismiss is barred by the single motion rule of CPLR 3211 (subd [e]). While that rule was designed "to spare the court’s motion calendars from being burdened” and "to protect the pleader from being harassed by repeated CPLR 3211 (a) motions” (Siegel, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR C3211:55, p 59), it is inapplicable here, and the two motions to dismiss should be permitted in this case because two different parties in two separate pleadings are alleging distinct causes of action against Celotex.

Section 3211(f) extends the defendant’s time to serve an answer after a motion to dismiss.

Jackson v. Bader · filed 1980-02-19(f)

Defendants’ time for service of their answer was extended by operation of law to the middle of November, 1978 (see CPLR 3211, subd [f]).

CPLR 3211(e) generally permits only one motion to dismiss, while an omitted objection may be pleaded in the answer and raised later on summary judgment under CPLR 3212.

Fierro v. Mauro · filed 1980-03-24(e)

The court is aware that one may only bring one motion pursuant to CPLR 3211 (subd [e]), however, the court treats the present motion as a 3212 motion which defendants are free to bring anytime after joinder of issue. As Professor Siegel states in the Practice Commentary (McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:55, p 60) "The remedy of the would-be movant who has used up his 3211 motion is to plead the omitted objection in his answer and then move for summary judgment under CPLR 3212." This is what the defendants have done in the present case. Many of the grounds upon which a CPLR 3211 motion could have been made before the answer was served, can be used as a basis for a motion for summary judgment afterwards.

Section 3211 permits dismissal based on documentary evidence or failure to state a cause of action, but dismissal is limited when the submitted materials do not resolve factual issues.

Ewald v. European-American Bank & Trust Co. · filed 1980-05-05(a)(1), (a)(7)

In our view, the dismissal should have been without prejudice to the petitioners’ right to assert their claim as a defense to any action on the guarantee or the subject mortgage. While generally in agreement with the determination of Special Term regarding the effect of the assignment and petitioners’ liability thereunder, it is our belief that the papers and documents submitted on United’s cross motion do not adequately establish either petitioners’ position that the underlying loan has been fully repaid or United’s contention that the loan remains unpaid in whole or in part.

Section 3211(a)(5) and (e) require a release defense to be raised by a pre-answer motion or in the responsive pleading, or it is waived.

John T. Brady & Co. v. City of New York · filed 1980-06-10(a)(5), (e)

On the other hand, CPLR 3211 (subd [a], par 5) and CPLR 3211 (subd [e]) clearly mandate that the defense of release, which the City now seeks to assert, is waived unless raised either by a motion before service of the responsive pleading or is asserted in the responsive pleading itself.

CPLR 3211(e) waives a defense based on a ground listed in CPLR 3211(a) unless raised by motion to dismiss or in a responsive pleading.

Raoul v. Olde Village Hall, Inc. · filed 1980-07-07(a)(5), (e)

We conclude therefore that CPLR 3211 (subd [e]) means what it says and that where a party has failed to assert it by motion to dismiss or in a responsive pleading, the defense of the Statute of Frauds has been waived and may not be asserted thereafter on appeal.

CPLR 3211(f) permits a motion to dismiss in lieu of an answer and extends the time to answer, while CPLR 3211(c) permits the court to treat the motion as one for summary judgment.

Copelan v. Archibald · filed 1980-07-11(f), (c)

We do not so interpret the language, but rather that such a motion may be made in lieu of answer and thereby extends the time for answer (CPLR 3211, subd [f]). ... “The court need only treat the motion as one for summary judgment, a power expressly conferred on it by CPLR 3211(c)” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11B, CPLR, C3211:52). ... The court accordingly holds that the motion is timely and is considered as made under CPLR 3212.

A CPLR 3211 motion made after the time allotted for a responsive pleading is untimely, but the court may consider it as a motion for summary judgment.

Continental Information Systems Corp. v. Mutual Life Insurance · filed 1980-11-13(e)

Motions to dismiss under CPLR 3211 must be made within the time allotted for the return of a responsive pleading (CPLR 3211, subd [e]). Defendant served an answer and did not for a substantial period of time seek to make a CPLR 3211 motion. The motion was, therefore, untimely; however, a court may consider the motion as one for summary judgment under CPLR 3212 (see Siegel, New York Practice, § 283, p 339).

A defendant waives lack of standing and Statute of Limitations defenses by failing to raise them in a CPLR 3211(a) motion or in the answer.

Auto Body Federation of Empire State, Inc. v. Lewis · filed 1981-02-17(e)

Defendants have waived their right to raise the defenses of lack of standing and Statute of Limitations as a result of their failure to move to dismiss on these grounds pursuant to CPLR 3211 (subd [a]) or raise these defenses in their answer (see CPLR 3211, subd [e]).

A plaintiff opposing a CPLR 3211(a)(5) motion on statute-of-limitations grounds must provide some factual support for avoiding the statute in the answering papers.

Sparacino v. Winner · filed 1981-06-16(a)(5)

Nonetheless, the complaint should be dismissed under CPLR 3211 (subd [a], par 5). The action was commenced in May of 1980. The physician’s affidavit stated that he treated the plaintiff from October, 1976 until March, 1977, and that he has not seen her nor communicated with her since then. There is no contradiction of his statement, merely the contention that the question is raised prematurely. If the statute is to be avoided, there should be some factual demonstration in the answering papers.

Section 3211(e) waives res judicata and collateral estoppel defenses unless raised in a timely motion to dismiss or in the answer.

Pace v. Perk · filed 1981-07-06(e)

Since the defendants in this case did not timely move to dismiss plaintiffs’ complaint under CPLR 3211 (subd [a], par 5) and did not assert the defenses of res judicata or collateral estoppel in their respective answers, those defenses were waived (CPLR 3211, subd [e]).

CPLR 3211(e) treats an objection to improper joinder as waived unless the defendant promptly moves to dismiss or preserves the objection in the answer.

McDaniel v. Clarkstown Central District No. 1 · filed 1981-07-27(e)

The purported defect in joinder thus requires a prompt motion to dismiss or preservation by way of defense in the answer, lest it be deemed waived (CPLR 3211, subd [e]).

A Statute of Frauds defense is waived if it is not raised in the answer or on a motion to dismiss.

Schaffer Stores Company v. Grand Union Co. · filed 1981-10-15(e)

Initially, we reject defendant’s contention that the contract violates the Statute of Frauds (General Obligations Law, § 5-701) since this affirmative defense was not raised in the answer or on a motion to dismiss and is, therefore, deemed waived (CPLR 3211, subd [e]; 3018, subd [b]; Chester Nat. Bank v Roundout Mar., 46 AD2d 985, mot for lv to app den 37 NY2d 706).

A defendant preserves personal-jurisdiction and limitations defenses by raising them in the answer, provided an earlier CPLR 3211 motion did not omit them.

Connell v. Hayden · filed 1981-10-19(e)

Since the two defenses were asserted in defendant Jonassen’s answer and since there is no indication that he made a prior motion to dismiss under CPLR 3211 without raising those defenses, they were not waived and were properly presented on that defendant’s motion for summary judgment (CPLR 3211, subd [e]; ... Siegel, New York Practice, § 283).

A statute of limitations defense can be waived, so service after the limitations period can still confer personal jurisdiction.

Arce v. Sybron Corp. · filed 1981-07-27(e)

However, because the Statute of Limitations suspends only the remedy and not the right ... and can therefore be waived (CPLR 3211, subd [e]), the fact that service was made after the expiration of the period of limitation has no effect whatever on its validity or upon the acquisition of jurisdiction over the person of the defendant who was served.

CPLR 3211(f) gives a defendant 10 days after service of notice of entry of an order determining a motion to dismiss to answer, subject to extension by a stay pending appeal.

370 Hamilton Avenue, Inc. v. Allied Outdoor Advertising, Inc. · filed 1981-10-22(f)

Defendant’s notice to examine was timely served, within 10 days after service of notice of entry of the order determining the motion to dismiss (CPLR 3211, subd [f]), as extended by the stay pending appeal.

Section 3211(e) sets the time for making a motion to dismiss based on documentary evidence.

Danahy v. Meese · filed 1981-10-30(e)

Considering next defendant’s motion to dismiss, the motion pursuant to CPLR 3211 (subd [a], par 1), a defense founded on documentary evidence, is untimely and was properly denied (CPLR 3211, subd [e]).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment; a motion raising a personal jurisdiction defense preserved in the answer may therefore be timely.

Stuart v. Board of Directors of Police Benevolent Ass'n of New York State Police, Inc. · filed 1982-01-21(c)

Initially, we note that the cross motion was timely since defendants raised the defense of lack of personal jurisdiction in their answer and the court could treat the motion as one for summary judgment (CPLR 3211, subd [c]).

Section 3211(e) preserves a lack-of-personal-jurisdiction defense asserted in an answer; after an amended complaint, the defendant may move on a ground preserved in the new answer.

Johnson v. Boro Medical Center Local No. 563 · filed 1982-08-23(e)

After service of its answer to the amended complaint, defendant may move for summary judgment on whatever ground it has preserved in the new answer.

Section 3211(e) treats a statute of limitations defense as waived if the defendant neither moves to dismiss on that ground nor raises it in the answer.

Glen Head — Glenwood Landing Civic Council, Inc. v. Town of Oyster Bay · filed 1982-08-30(e)

The attack on the timeliness of the action is also without merit; the right to raise the affirmative defense of the Statute of Limitations was waived when defendants failed to move to dismiss on this ground or to raise the defense in their answers (see CPLR 3211, subd [e]; Auto Body Federation of Empire State v Lewis, 80 AD2d 593; Doroski v Mintler, 49 AD2d 990).

Section 3211(e) waives a collateral estoppel defense unless it is raised in a responsive pleading or a motion made before the responsive pleading is due.

Mayers v. D'Agostino · filed 1982-12-02(e)

CPLR 3211 (subd [e]) provides, inter alia, that a defense based upon the doctrine of collateral estoppel is waived unless raised either in a responsive pleading or in a motion made before service of the responsive pleading is required. Defendants raised the defense of collateral estoppel for the first time during the trial. Consequently, defendants waived this defense unless they could obtain leave to amend their answer to include the affirmative defense.

A statute of limitations defense is waived if it is raised in neither the answer nor a preanswer motion, including when the defendant is the State.

Trayer v. State · filed 1982-12-16(e)

Turning first to the order involving Claims Nos. 64348 and 64349, the Court of Claims properly ruled that the State waived any objection based on the provisions of CPLR 215 by not raising the matter in either its answer or by way of a preanswer motion.

Section 3211(e) waives a statute of limitations defense unless it is pleaded in the answer or raised in a preanswer motion to dismiss.

Parzek v. New England Log Homes, Inc. · filed 1983-03-03(e)

If it is not pleaded in the answer, or asserted in a motion to dismiss made before service of the answer, the defense is waived (CPLR 3211, subd [e]). Defendant’s answer contains no affirmative defenses, and there is nothing in the record to indicate that the Statute of Limitations was raised in a preanswer motion to dismiss.

An affirmation opposing a prior motion does not extend the time to answer under subsection (f) when it does not qualify as a CPLR 3211 motion.

Silverstein v. Hobby Land Marine, Inc. · filed 1983-03-14(f)

Since this prior motion was not a motion pursuant to CPLR 3211, and since there was not a timely answer to the complaint the court is constrained to conclude that the defendants are in default in answering.

Section 3211(e) treats a collateral estoppel defense as waived if it is not included in the answer, either originally or by amendment.

Rodriguez v. City of New York · filed 1983-03-22(e)

CPLR 3018 (subd [b]) is quite explicit in requiring the defense of collateral estoppel to be affirmatively pleaded, and CPLR 3211 (subd [e]) provides that a failure to include the defense (either originally or by amendment) constitutes a waiver.

A Statute of Frauds defense may be raised by a CPLR 3211(e) motion to dismiss; the court may decline to entertain it when it was neither pleaded nor raised by motion.

Fowler Court Tenants, Inc. v. Young · filed 1983-05-02(e)

This is a Statute of Frauds defense; as such, in order to be enforced by either party against another, it must be properly pleaded as a defense in an action brought thereon pursuant to CPLR 3018 (subd [b]) or asserted by a motion to dismiss pursuant to CPLR 3211 (subd [e]). ... This court further notes that its examination of the file revealed that no motion to dismiss had been made pursuant to CPLR 3211 (subd [e]). Accordingly, the court declines to entertain a Statute of Frauds defense raised at this time.

A defense waived under CPLR 3211(e) because it was omitted from a motion or responsive pleading may still be added by amendment.

A. J. Pegno Construction Corp. v. City of New York · filed 1983-06-07(e)

Contrary to plaintiff’s position on this appeal, this statutory direction has been held repeatedly to apply to defenses deemed “waived” under CPLR 3211 (subd [e]) when not raised “either by * * * motion or in the responsive pleading.”

A Statute of Frauds defense is waived when it is raised neither in the answer nor as an objection to evidence of the oral agreement.

Fiske v. Fiske · filed 1983-06-16(a)(5), (e)

While it is true that defendants are successors in interest to the title of the land previously owned by plaintiffs Fiske and, as such, could claim the benefit of the Statute of Frauds to defeat the rights of any third parties seeking to enforce a prior oral contract affecting the title to said property (see 73 Am Jur 2d, Statute of Frauds, § 577, pp 216-217), it does not appear that such a defense was raised by defendants in this action in either their answer or as a basis for objection when plaintiffs offered evidence of their oral agreement. Accordingly, any defense based on the Statute of Frauds was waived (see CPLR 3211, subd [a], par 5; subd [e]; 56 NY Jur, Statute of Frauds, § 336, pp 457-458).

A defense waived under CPLR 3211(e) because it was omitted from a motion or responsive pleading may be added by leave to amend.

Giacomazzo v. Moreno · filed 1983-06-30(e)

The Supreme Court dismissed the action on the basis of that decision, thus implicitly granting the motion to amend. This was not an abuse of discretion by the court. The statute says that motions to amend pleadings may be made “at any time”, and that “[l]eave shall be freely given”. (CPLR 3025, subd [b].) “This statutory direction has been held repeatedly to apply to defenses deemed ‘waived’ under CPLR 3211 (subd [e]) when not raised ‘either by * * * motion or in the responsive pleading.’ ”

A motion labeled as one to dismiss under CPLR 3211(a) is treated as a summary judgment motion under CPLR 3212 when made after joinder of issue.

Impastato v. De Girolamo · filed 1983-06-27(a)

Although Dr. Citrin’s cross motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (subd [a]), it was made after joinder of issue and, therefore, was actually a motion for summary judgment pursuant to CPLR 3212 (see Connell v Hayden, 83 AD2d 30, 32).

A statute of limitations defense must be raised in a pre-answer motion or specifically pleaded in the answer; otherwise, it is waived.

Eagle Insurance v. City of New York · filed 1983-06-28(a)(5), (e)

As such, it must be asserted by defendant by a motion to dismiss prior to answer pursuant to CPLR 3211 (subd [a], par 5) or as a specific affirmative defense in the answer. ... A defendant who does neither must be deemed to have waived it.

Section 3211(e) waives a lack-of-standing defense unless it is raised by motion or in the responsive pleading.

Prudco Realty Corp. v. Palermo · filed 1983-09-20(e)

Inasmuch as CPLR 3211 (subd [e]) provides that such a defense is waived if not raised either by motion or in the responsive pleading, S. F. Shopping Center, Inc., must be deemed to have waived its objection to petitioner’s standing.

Section 3211(e) preserves the defense of failure to state a cause of action even when it was omitted from an earlier motion under the section.

McLearn v. Cowen & Co. · filed 1983-09-29(e)

The defense of failure to state a cause of action is not lost, however, by failure to include this ground in the motion under 3211 (CPLR 3211, subd [e]).

CPLR 3211(e) permits a motion to dismiss for lack of subject matter jurisdiction, failure to state a cause of action, or failure to join a necessary party at any time, even if the objection was not raised in the answer.

State v. Wolowitz · filed 1983-10-24(e)

However, a motion for dismissal based on a lack of subject matter jurisdiction, failure to state a cause of action, or the absence of a person who should be a party, may be brought at any time even if such objection is not raised in the answer (CPLR 3211, subd [e]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:58, pp 61-62). Therefore, the Attorney-General’s motion to dismiss was not untimely.

Section 3211(f) gives a defendant whose motion to dismiss is denied an opportunity to submit answering papers before summary judgment in lieu of complaint is granted.

Key Bank of Central New York v. Puliafico · filed 1983-11-04(f)

Since defendants’ cross motion to dismiss (CPLR 3211, subd [a], par 4) was denied, Special Term erred in granting plaintiff’s motion for summary judgment in lieu of complaint (CPLR 3213) without giving defendants an opportunity to submit answering papers (see CPLR 2001, 3211, subd [f]; see, also, North Broadway Funding Corp. v Freed, 45 AD2d 759) (Appeal from orders and judgment of Supreme Court, Oneida County, Miller, J. — summary judgment.) Present — Dillon, P. J., Callahan, Green, O’Donnell and Schnepp, JJ.

Section 3211(e) permits a timely Statute of Frauds defense to be raised as an affirmative defense in an amended answer.

Alex Derechin & Son, Inc. v. Field · filed 1983-11-14(e)

On the record before us it is clear that defendant Roger Field raised the Statute of Frauds timely as an affirmative defense in his amended answer (CPLR 3211, subd [e]; see Raoul v Olde Vil. Hall, 76 AD2d 319; Reich v Knopf, 65 AD2d 618).

Section 3211(f) governs when the time to answer expires after a motion to dismiss is denied.

Aces Mechanical Corp. v. Cohen Bros. Realty & Construction Corp. · filed 1984-01-24(f)

Pursuant to CPLR 3211 (subd [f]) their time to answer expired on November 15, 1982.

A CPLR 3211 motion extends the time to answer only if made before the answer was originally due; a late motion does not cure a pleading default.

Wenz v. Smith · filed 1984-03-19(f)

A motion to dismiss pursuant to CPLR 3211 will extend the time in which a defendant may serve a responsive pleading only if the motion is made before that pleading was originally due and will not operate to relieve a party’s default in pleading (see Kirschenbaum v Gianelli, 63 AD2d 1057; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.49, citing 1 NY Adv Comm Rep 87 [1957]).

When illegality does not appear on the face of the complaint, it is an affirmative defense under section 3211(a)(5) and is subject to waiver.

National Recovery Systems v. Mazzei · filed 1984-03-30(a)(5)

Since the unenforceability of the instant contract does not appear on the face of the complaint, the defense must be treated as an affirmative defense pursuant to CPLR 3211 (subd [a], par 5) and is thus subject to waiver.

A statute of limitations defense may be raised by a pre-answer motion under § 3211(a)(5) or in the responsive pleading under § 3211(e).

Aleci v. Virgie E. Tinsley's Enterprises, Inc. · filed 1984-06-04(e)

The affirmative defense of the Statute of Limitations may be raised by motion pursuant to CPLR 3211 (subd [a], par 5) prior to service of a responsive pleading, or in the responsive pleading itself (CPLR 3211, subd [e]).

A collateral estoppel defense is waived if it is not raised by motion or in the answer.

Ford Motor Credit Co. v. Hickey Ford Sales, Inc. · filed 1984-06-07(e)

That argument was, however, waived by failure to raise it by motion or in the answer (CPLR 3211, subd [e]; see CPLR 3018, subd [b]) and in any event cannot succeed because, as hereafter indicated, Mary I. Hickey is not foreclosed from attacking the validity of the attachment.

Section 3211(f) gives a defendant ten days to answer after service of an order denying a motion to dismiss.

Salzman & Salzman v. Gardiner · filed 1984-04-02(f)

Thus, the 10-day period in which to serve an answer (CPLR 3211, subd [fl) was extended for an additional five days (CPLR 2103, subd [b], par 2) to February 3,1983.

Section 3211(f) prescribes the time to answer after a motion to dismiss is denied; missing that deadline can lead to a default judgment.

Fredericks v. Home Indemnity Co. · filed 1984-04-05(f)

After denial of its motion to dismiss on February 4, 1983, Home failed to furnish an answer in the time prescribed, pursuant to CPLR 3211 (subd [f]) and 2103 (subd [b], par 2), and Special Term, in response to plaintiffs’ and Lumbermens’ motions, thereupon granted a default judgment against Home in favor of plaintiffs on their complaint, and in favor of Lumbermens on its cross claim.

Section 3211(e) does not prevent a defendant from obtaining leave to amend an answer to add a statute of limitations defense omitted from the original answer and motion.

Teska v. New York Hospital-Cornell Medical Center · filed 1984-08-23(e)

Special Term denied the motion on the ground that the right to assert this defense was waived by the failure to raise it either by motion or in the original pleadings, citing CPLR 3211 (subd [e]). We disagree and accordingly reverse the order appealed from, and grant the motion for leave to serve appellants’ amended answers.

CPLR 3211(e) treats standing and Statute of Limitations defenses as waived when they are raised neither in the answer nor in a pre-answer motion to dismiss.

Dougherty v. City of Rye · filed 1984-11-15(e)

Finally, the City’s arguments that plaintiffs lack standing to raise any issue regarding notice to the County Planning Board and that this action is untimely under the applicable Statute of Limitations were not asserted in the City’s answer or in a pre-answer motion to dismiss and ... have thus been waived (CPLR 3211, subd [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657; Trayer v State of New York, 90 AD2d 263, 265-266).

Section 3211(e) waives a documentary evidence defense if the defendant neither moves before serving a responsive pleading nor preserves the defense in its answer.

Chautauqua County Sheriff's Employees Ass'n v. Chautauqua Local 807 · filed 1984-12-03(e)

The defense based upon documentary evidence has been waived under CPLR 3211 (subd [e]) by failing to move before service of the responsive pleading or to preserve the grounds in its answer.

Section 3211(e) waives a statute of limitations defense omitted from both a preanswer motion to dismiss and the answer when leave to amend the answer is properly denied.

Department of Social Services ex rel. Katherine McL. v. Jay W. · filed 1984-12-17(e)

With regard to the claimed defense of the Statute of Limitations, if the Family Court correctly denied appellant leave to amend his answer to assert the Statute of Limitations, then appellant’s failure to raise that defense in a preanswer motion to dismiss or in his answer constituted a waiver thereof (CPLR 3211, subd [a], par 5; 3211, subd [e]). ... In this case, where appellant inexcusably failed to make the application until the trial had commenced, there was a sufficient basis to justify the court’s denial of his motion (Mayers v D’Agostino, supra; Fulford v Baker Perkins, Inc., supra; Matter of Schwartz v New York City Tr. Auth., 104 AD2d 370; Shanahan v Shanahan, 92 AD2d 566).