N.Y. C.P.L.R. § 3211

CPLR 3211(f)'s ten-day period to answer may be extended when a longer period is reasonable and causes no prejudice.

Patrick v. Perales · filed 1985-02-28(f)

The State and city requested 20 days to answer the petition, rather than the 10 allowed under CPLR 3211 (f). Special Term, without stating its reasons, directed respondents to serve their answer within five days. This was an abuse of discretion and we modify accordingly. The request for 20 days was reasonable, nonprejudicial to petitioners, and should be granted.

CPLR 3211(f) automatically extends a defendant’s time to answer when a motion to dismiss is denied.

In re Rochester Urban Renewal Agency · filed 1985-04-05(f)

Under CPLR 3211 (f), upon the denial of a motion to dismiss, the defendant is automatically granted an extension of time to answer.

After a motion to dismiss is denied, CPLR 3211(f) gives the defendant 10 days after service of notice of entry of the order to answer.

Safier v. Cohl · filed 1985-05-02(f)

The Cohls then had until 10 days after service of the notice of entry of that order within which to answer the complaint (CPLR 3211 [f]).

CPLR 3211(e) does not bar a later motion to dismiss under CPLR 3211 when the earlier motion was made under CPLR 7503.

Cabrini Medical Center v. Desina · filed 1985-04-23(e)

Defendants’ motion having been made under CPLR 7503, a motion to dismiss the complaint under CPLR 3211 would not now be barred by CPLR 3211 (e).

An objection to a plaintiff’s capacity to sue is generally waived if it is not raised by motion or pleading.

Symphony Fabrics Corp. v. Creations By Aria, Inc. · filed 1985-06-13(e)

Pursuant to CPLR 3211 (a), (e), an objection on the ground of lack of capacity to sue is usually waived if not raised by motion or pleading. ... Inasmuch as this issue was not raised until trial, in 1984, whereas the action was commenced in October 1981, the objection may be deemed waived.

A defendant’s notice of appearance does not waive an objection to a defective summons, but the defendant must raise that objection in its answer or a timely motion to dismiss.

Le Conte v. City of New York · filed 1985-09-09(a)(8)

In the case at bar, although this court finds that the notice of appearance and demand for the complaint did not operate to waive defendant’s jurisdictional objection, defendant’s failure to subsequently raise the objection in its answer or in a timely motion under CPLR 3211 (a) (8) precludes defendant from raising such objection to the defective summons at this juncture.

Section 3211(e) treats a timeliness defense as waived when it is not raised in a responsive pleading or motion to dismiss.

Oliver v. County of Broome · filed 1985-12-05(e)

The Comptroller waived argument to the contrary by neglecting to raise the defense in a responsive pleading or motion to dismiss (CPLR 3211 [e]; Matter of Ruiz v Lavine, 49 AD2d 1, 2, n 1).

A defense deemed waived under CPLR 3211(e) may be added by amending the pleadings if the delay causes no prejudice or surprise.

Fischer v. Broady · filed 1986-03-31(e)

This statutory direction applies to defenses deemed "waived” under CPLR 3211 (e) (see, Lermit Plastics Co. v Lauman & Co., 40 AD2d 680).

Section 3211(e) waives a documentary evidence defense first raised in a motion to dismiss after the answer is served.

Masada Universal Corp. v. Goodman System Co. · filed 1986-06-16(e)

The respondents first raised the documentary evidence defense (CPLR 3211 [a] [1]) in the motion to dismiss after service of the answer to the third-party complaint, and the defense was, therefore, waived (see, CPLR 3211 [e]).

A defendant waives a statute-of-frauds defense by failing to raise it in a motion to dismiss or as an affirmative defense in the answer.

Goldman v. Orange County Chapter · filed 1986-06-30(e)

During the nonjury trial, the defendant argued that pursuant to General Obligations Law 5-703 (1), the attorney’s letter of April 5, 1979 did not constitute a valid exercise of the landlord’s option to renew the lease. The trial court properly rejected that argument on the ground of waiver, i.e., it had not been raised either by a motion to dismiss or as an affirmative defense in the defendant’s answer (see, CPLR 3211 [a] [5]; [e]).

CPLR 3211(e) treats a Statute of Frauds defense as waived when it is not asserted in a timely manner.

Papell v. Calogero · filed 1986-07-03(e)

The Statute of Frauds was waived by defendant by its failure to assert it in a timely manner (see, CPLR 3211 [e]).

Section 3211(e) does not bar amendment of an answer to add a limitations defense when the delay causes no prejudice.

Nelson v. Downstate Medical Center · filed 1987-04-09(e)

The issue that must be first resolved is the effect of CPLR 3211 (e) on defendant’s application to raise the defense of the Statute of Limitations via an amendment to his answer. It is well established that the plaintiff’s position that CPLR 3211 (e) bars the amendment is without merit.

CPLR 3211(e) does not bar a defendant from raising an untimely notice of claim on a motion to dismiss when the defendant did not plead untimeliness as an affirmative defense; compliance with the notice of claim requirement is a condition precedent the plaintiff must plead.

Nicholas v. City of New York · filed 1987-05-04(e)

Instead, the plaintiffs contend that the defendants are precluded by CPLR 3211 (e) from raising the defense of untimeliness in a motion to dismiss because it was not pleaded as an affirmative defense in their answer. We disagree. ... Thus, there is no merit to the plaintiffs’ contention that the defendants waived the defense that the notice of claim was untimely.

Section 3211 treats the Statute of Limitations as an affirmative defense that the defendant must plead and prove or waive.

Joseph T. Ryerson & Son, Inc. v. Piffath · filed 1987-07-06(a)(5), (e)

The Statute of Limitations is not an element of the plaintiff’s claim, but an affirmative defense to be pleaded and proved or waived by the defendant (CPLR 3211 [a] [5]; [e]; see, Romano v Romano, 19 NY2d 444, 447).

A defendant waives a lack-of-capacity defense by failing to raise it in a motion before serving the answer or in the answer itself.

Erljur Associates v. Weissman · filed 1987-11-09(e)

The appellants waived any contention that the plaintiff corporation lacked the capacity to sue on the contract (because it had entered into that contract after it had been dissolved for failure to pay its franchise taxes) by their failure to assert that defense in a motion before the service of their answer or in the answer itself (see, CPLR 3211 [a] [3]; [e]; see, Lorisa Capital Corp. v Gallo, 119 AD2d 99).

Section 3211(e) treats a statute of limitations defense as waived if it is not raised in the answer or by motion to dismiss.

Laborers' International Union of North America, Local 210 v. Hadala Construction, Inc. · filed 1987-11-10(e)

We add only that respondent Hadala Construction, Inc. has not preserved for review its argument that this proceeding is barred by the Statute of Limitations. It waived this affirmative defense by failing to raise it in its answer or by motion to dismiss (see, CPLR 3211 [e]).

CPLR 3211(e) treats a statute of limitations defense as waived if it is not raised in the answer or by a motion to dismiss.

Ferrigan v. Thompson · filed 1987-12-17(e)

We, however, note that the Board failed to raise the Statute of Limitations defense in its answer or by a motion to dismiss (see, CPLR 3211 [e]; 7804 [f]). This constitutes a waiver of such defense (Matter of Hans v Burns, 48 AD2d 947).

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

Pepsico, Inc. v. Wendy's International, Inc. · filed 1987-12-09(f)

Defendants served a motion to dismiss on December 2, 1986. Under New York practice, service of a motion to dismiss extends the time to answer until ten days after service of notice of entry of the order denying the motion to dismiss. CPLR 3211(f). The court has not decided the motion to dismiss and the answer has not yet been served. The amended complaint, accordingly, was timely.

A defendant waives the affirmative defense of payment by failing to plead it in an answer or motion to dismiss.

Valente v. Shuman · filed 1988-02-16(e)

The defendant’s failure to plead payment as an affirmative defense in either its answer or in its motion to dismiss constitutes a waiver of the defense and barred it from introducing the evidence of partial payment at the trial (see, CPLR 3211 [e]; 3018 [b]; Siegel, NY Frac § 263).

Section 3211(e) treats a Statute of Limitations defense as waived when it is neither pleaded nor raised in a motion to dismiss.

Walden v. F. W. Woolworth Co. · filed 1988-03-10(e)

Thus, having neither been pleaded nor asserted in a motion to dismiss (see, CPLR 3211 [a] [5]), the Statute of Limitations defense was waived. (See, CPLR 3211 [e].)

Section 3211(e) treats a Statute of Limitations defense as waived if it is not raised in a preanswer motion or the answer.

Itzkowitz v. Town Board of Niagara · filed 1988-04-08(e)

We further find that defendants waived any Statute of Limitations defense with respect to plaintiff’s fifth cause of action, seeking a declaratory judgment, by failing to raise it in a preanswer motion or in their answer (CPLR 3211 [e]).

Section 3211(e) permits a motion to dismiss based on sovereign immunity at any time because that defense raises a question of subject matter jurisdiction.

Collins v. Shinnecock Tribe · filed 1988-09-12(e)

Furthermore, since the defense of sovereign immunity raises the question of subject matter jurisdiction the motion to dismiss based on this ground may be made at any time.

Section 3211 permits a motion to dismiss during the period in which an answer may be amended as of right, without waiving the defense asserted in the motion.

Bennett v. First National Bank of Glens Falls · filed 1989-01-12(e)

Although such failure under many circumstances would constitute a waiver (see, CPLR 3211 [e]; Marcoux v Marcoux, 123 AD2d 844, 845), we conclude that no waiver exists in this case. ... We hold that a motion to dismiss may be made prior to the time in which an amended answer may be served.

Section 3211(e) requires a motion to dismiss for lack of personal jurisdiction to be made before answering or within the time to answer.

Reed v. State · filed 1989-02-02(e)

Although the State did move to dismiss in action No. 1, CPLR 3211 (e) requires that the motion be made prior to answering or within the time required to answer.

A collateral estoppel defense must be raised in the answer or motion papers to be properly before the court.

Fazekas v. Teledyne, Inc. · filed 1989-02-03(e)

The issue of collateral estoppel was not properly before us because it was not raised in the answer or in the motion papers (see, CPLR 3211 [a] [5]; [e]).

Section 3211(f) keeps the time to answer open during a preanswer motion, allowing a complaint to be amended as of right before a responsive pleading is due.

Greenfield v. Greenfield · filed 1989-02-06(f)

The amended complaint was served during the pendency of the defendant’s preanswer motion, before the defendant’s time to serve a responsive pleading had expired, and the amendment was therefore properly made as of right (CPLR 3211 [f]; 3025 [a]; Moore Adv. Agency v I.H.R., Inc., 114 AD2d 484, 486-487; Siegel, NY Prac § 236, at 286-287).

CPLR 3211 allows a defendant to preserve a defense by raising it in a motion to dismiss within the time to answer; defenses omitted from both a timely motion and the answer are waived.

Peoples Commercial Bank v. Jerry Greene Distributing, Inc. · filed 1989-04-06

We conclude that Santos has waived these three defenses by failing to either allege them as affirmative defenses in its answer or advance them in a CPLR 3211 motion to dismiss within the answering time.

A motion to dismiss extends the time to answer under CPLR 3211 (f).

Scharaga v. Schwartzberg · filed 1989-04-17(f)

Their motion, inter alia, to dismiss, had the effect of extending the time to answer (CPLR 3211 [f]).

A defense waived under CPLR 3211(e) may be added to an amended answer with court leave if the delay causes no prejudice or surprise to the plaintiff.

Armstrong v. Peat, Marwick, Mitchell & Co. · filed 1989-05-09(e)

It has been repeatedly held that defenses waived under CPLR 3211 (e) can nevertheless be interposed, with court leave, in an amended answer, provided the amendment does not cause the plaintiff "prejudice or surprise resulting directly from the delay” (Fahey v County of Ontario, 44 NY2d 934, 935).

Section 3211(e) waives a Statute of Frauds defense if it is omitted from the answer and was not raised in a pre-answer motion.

Keenan v. Artintype Inc. · filed 1989-08-15(e)

The answers did not contain the defense of the Statute of Frauds. The failure to include this defense (or to move on the basis of it prior to answer) constitutes a waiver of the defense.

A timeliness defense is waived if it is not asserted as an affirmative defense in the answer.

McHoul v. Sellick · filed 1989-08-23(a)(5), (e)

The issue of the timeliness of the filing of the petitioner’s objection and specifications was not asserted as an affirmative defense in the answer. Such a failure results in a waiver of that defense (see, CPLR 3211 [a] [5]; [e]; Dougherty v City of Rye, 63 NY2d 989).

A defendant waives a standing objection under Section 3211 by failing to raise it in the answer.

SWSA Corp. v. Allright Auto Parks, Inc. · filed 1989-10-06(e)

Defendant waived the issue of standing by failing to raise it in its answer (see, CPLR 3211 [a] [3]; [e]; Erljur Assocs. v Weissman, 134 AD2d 321, Iv denied 71 NY2d 802).

Section 3211(e) requires res judicata to be affirmatively pleaded before it can be asserted.

State v. International Fidelity Insurance · filed 1989-11-09(e)

The defense of res judicata cannot be asserted in the absence of affirmative pleading (CPLR 3211 [e]; see, Mayers v D’Agostino, 58 NY2d 696, 698).

Section 3211(e) permits defendants to raise in their answer claims and defenses that their motion to dismiss did not waive.

Cohn v. Rothman-Goodman Management Corp. · filed 1989-11-20(e)

The defendants are of course free to interpose in their answer those claims and defenses which they deem appropriate and which were not waived by their motion to dismiss (see, CPLR 3211 [e]).

A defendant waives a corporate plaintiff’s lack-of-capacity defense unless it is raised by motion to dismiss or in the responsive pleading; merely mentioning it in an affidavit is insufficient.

RCA Records v. Wiener · filed 1990-10-09(a)(3), (e)

A defense that a corporate plaintiff has failed to comply with the requirements of Business Corporation Law § 1312 is based on the premise that plaintiff is without legal capacity to sue, and this defense is waived unless raised either by motion to dismiss or in the responsive pleading. (CPLR 3211 [a] [3]; [e].) In his affidavit in support of a motion to dismiss for failure to state a cause of action, defendant’s mere statement that plaintiff may not have complied with Business Corporation Law § 1312, without seeking relief on this ground, was insufficient to raise it as a defense and it was therefore waived.

A defendant waives an objection to the plaintiff’s standing by failing to raise it in a motion before serving the answer or in the answer itself.

Muchnick v. Alcamo Supply & Contracting Corp. · filed 1991-01-14(e)

The defendants’ claim that the plaintiff lacked the capacity to sue on the contract is untimely. By failing to assert such a defense in a motion before the service of their answer or in the answer itself, they have waived any objection to the plaintiff’s standing (see, CPLR 3211 [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657; Erljur Assocs. v Weissman, 134 AD2d 321).

Section 3211(e) does not require an untimely notice of claim to be pleaded as a statute-of-limitations defense because a notice of claim is a condition precedent, not a time limitation.

Rodriguez v. City of New York · filed 1991-01-22(e)

The court erred, moreover, in concluding that the one-year- and-90-day period within which a notice of claim must be filed "constitutes a Statute of Limitations and must have been pleaded as an affirmative defense.” (See, CPLR 3211 [e].) A notice of claim is a condition precedent to the commencement of a negligence action against the city; a condition precedent is not a time limitation.

A CPLR 3211 (a) (11) motion must be made before the answer is served; pleading the statutory defense does not extend that deadline.

Woodford v. Benedict Community Health Center · filed 1991-10-24(a)(11)

A defendant’s CPLR 3211 (a) (11) motion to dismiss the complaint must be made before service of the answer. The inclusion of a statutory defense in the answer neither preserves nor extends the time within which to make a dismissal motion.

Section 3211(e)'s waiver rule for defenses omitted from a pre-answer motion to dismiss does not apply when no pre-answer motion was made.

Seda v. New York City Housing Authority · filed 1992-03-10(e)

Supreme Court erroneously relied on Addesso v Shemtob (70 NY2d 689), which concerns a defense waived by the failure to raise it in a pre-answer motion to dismiss (CPLR 3211 [e]). Unlike Addesso, defendant herein made no pre-answer motion, and its answer therefore remains subject to amendment.

Section 3211(e)'s waiver rule for a Statute of Frauds defense does not bar a defendant from arguing that the plaintiff failed to prove any guarantee.

Fendt Finding Co. v. Private Brands, Inc. · filed 1992-04-23(e)

We find the nisi prius court misconstrued defendant Private Brands’ contention, that the September 16, 1987 letter was insufficient to serve as a guarantee, to be merely a Statute of Frauds defense, waived under CPLR 3211 (e). That letter was plaintiff’s only proof of any guarantee, oral or written, and therefore, Private Brands’ assertion constituted a complete defense to any liability on its part.

CPLR 3211(e) permits a statute of limitations defense to be raised in a motion or responsive pleading; an earlier motion on another ground does not itself waive the defense.

Hickey v. Hutton · filed 1992-04-27(e)

However, the defense of the Statute of Limitations (CPLR 3211 [a] [5]), pursuant to CPLR 3211 (e) will be waived "unless raised either by such motion [CPLR 3211 (a)] or in the responsive pleading” (emphasis added).

A defense waived under CPLR 3211(e) may be revived by amending the answer if the plaintiff is not prejudiced or surprised; the defendant must move to amend.

Mancuso v. Levitt · filed 1992-05-15(e)

Armstrong (supra) holds that a waived defense pursuant to CPLR 3211 (e) may be revived provided plaintiff is not prejudiced or surprised by the amendment. Defendants, however, have not moved to amend their answer.

CPLR 3211(e) does not require a defendant to plead an untimely notice of claim as an affirmative defense because the notice period is not a statute of limitations.

Wieder v. New York City Health & Hospitals Corp. · filed 1992-05-28(e)

We specifically rejected the arguments raised by plaintiffs in the instant appeal, concluding that the failure to apprise plaintiffs of the untimeliness of the notice of claim does not work an estoppel and that the period in which a notice of claim must be filed does not constitute a statute of limitations that must be pleaded as an affirmative defense under CPLR 3211 (e). Accordingly, we affirm.

On a motion to dismiss affirmative defenses, the court construes the pleadings liberally and gives the pleader every reasonable inference before deciding whether the defenses are meritorious.

Pulsafeeder, Inc. v. Greene · filed 1992-07-14(b)

Giving Greene the benefit of every reasonable inference and construing his pleadings liberally, we conclude that his second, fourth and fifth affirmative defenses, which allege, respectively, that his employment contract was a contract of adhesion, that the contract fails for lack of consideration and that there is no privity between the parties, fail to state meritorious defenses and should be dismissed.

Section 3211(a)(5) covers direct estoppel, and section 3211(e) preserves a preclusion objection when a motion gives adequate notice of it without separately naming it.

Spinnell v. Sassower · filed 1992-06-16(a)(5), (e)

CPLR 3211 (a) (5) uses "collateral estoppel” and "res judicata” genetically to mean all varieties of issue preclusion and claim preclusion. CPLR 3211 (e) provides that such an objection is waived unless "raised either by * * * motion or in the responsive pleading”; it does not require that it be separately enumerated. It was sufficient that defendant raised the issue by citing Judge Arber’s decision in support of her motion under CPLR 3211 (a) (8), thereby giving plaintiff adequate notice.

CPLR 3211(e) treats a statute of limitations defense not asserted in the answer as waived.

Plank v. UIS, Inc. · filed 1992-10-07(e)

The defense was not asserted in the answer and is deemed waived (CPLR 3211 [e]).

Section 3211(e) requires a plaintiff to move to dismiss a Civil Court counterclaim on statute-of-limitations grounds before the time to reply expires, or raise the defense in a timely reply.

CBS Inc. v. Arcane Visuals Ltd. · filed 1993-03-08(e)

A party may move to dismiss a cause of action based on the Statute of Limitations, pursuant to CPLR 3211 (a) (5), at any time before service of the responsive pleading is required. (CPLR 3211 [e].) Therefore, within 10 days of service of the answer, a plaintiff must either raise a Statute of Limitations defense in a reply to a counterclaim contained in an answer in a Civil Court action, or move to dismiss the counterclaim based on such ground. Here, plaintiff did neither within 10 days.

A motion made after CPLR 3211’s time limit may be treated as a summary judgment motion when no one objects to its timing and the parties and court have treated it that way.

Brecka v. Dolan · filed 1993-03-11(e)

Although this motion was originally denominated as a motion to dismiss pursuant to CPLR 3211 (a) (5), and as such was interposed well beyond the time limit for such motions (see, CPLR 3211 [e]), no objection has been raised on this ground; because both parties and the court appear to have treated it as a summary judgment motion pursuant to CPLR 3212, we will do the same.

A defendant waives a lack-of-standing defense by omitting it from the answer and waiting more than six years after issue is joined to move to dismiss on that ground.

Charles Offset Co. v. Hobart-McIntosh Paper Co. · filed 1993-04-20(e)

Defendant has waived the defense of lack of standing since it failed to assert the claim as an affirmative defense in its answer and waited over six years after issue was joined in this action to move to dismiss the complaint on that ground (CPLR 3211 [e]; see, Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657).

CPLR 3211(e) treats a defendant’s failure to raise a personal jurisdiction objection in its first answer as a waiver, even if the defendant had not yet been properly served.

Urena v. NYNEX, Inc. · filed 1996-01-23(e)

Contrary to Supreme Court’s determination, any deficiency in the manner in which the summons and complaint first came into Laursen’s possession does not render its first answer a nullity, and its failure to raise the jurisdictional issue in that answer therefore constitutes a waiver of the affirmative defense pursuant to CPLR 3211 (e) (Boulay v Olympic Flame, 165 AD2d 191; Kukulka v Millard Fillmore Suburban Hosp., 106 AD2d 886).

Section 3211(e) does not require a party to raise a statutory presumption as an affirmative defense.

Mullen v. Linnane · filed 1996-01-25(e)

The statutory presumption is just that: there is no requirement that a presumption be raised as if it were an affirmative defense (see, CPLR 3211 [e]).

A defendant waives the defense of lack of capacity to sue by failing to raise it in an answer or in a motion before serving an answer.

Harte v. Richmond County Savings Bank · filed 1996-02-20(e)

RCSB waived the defense of lack of capacity to sue by failing to raise it in its answer, in its amended answer, or in a motion before service of its answer (see, CPLR 3211 [e]; Muchnick v Alcamo Supply & Contr. Corp., 169 AD2d 711; Erljur Assocs. v Weissman, 134 AD2d 321).

Section 3211(b) permits a court to deny a motion to strike affirmative defenses when conflicting affidavits raise triable issues of fact about those defenses.

Sagittarius Broadcasting Corp. v. Evergreen Media Corp. · filed 1996-04-23(b)

Nor did the IAS Court err in determining that plaintiffs were not entitled to the striking of defendant’s third affirmative defense, alleging impossibility of performance, or the remaining affirmative defenses, since conflicting affidavits of the parties raise triable issues of fact as to whether defendant Evergreen was excused from performing under the agreement by the doctrine of impossibility, because of the asserted unforeseeability of the FCC actions (see, Kel Kim Corp. v Central Mkts., 70 NY2d 900, 902; City of New York v Local 333, 79 AD2d 410, affd 55 NY2d 898).

Section 3211(e) limits when a party may move to dismiss; a cross motion made in opposition to a default judgment motion may be untimely.

McNamara v. Banney · filed 1996-05-31(e)

The prior cross motion of Mary Jo McNamara to dismiss the second third-party complaint, made in opposition to Banney’s motion for a default judgment, was untimely (see, CPLR 3211 [e]), however, and there is no pending motion to dismiss.

A defendant who fails to plead partial payment as an affirmative defense cannot receive a setoff on that basis.

Nannini & Callahan Excavating, Inc. v. Park Road Construction Corp. · filed 1996-12-09(e)

Moreover, the court correctly determined that the defendant’s failure to plead partial payment as an affirmative defense in this action bars it from receiving a setoff against the judgment (CPLR 3211 [e]; 3018 [b] ; see also, Munson v New York Seed Improvement Coop., 64 NY2d 985).

The 1996 amendment to CPLR 3211(e) does not apply to the personal-jurisdiction objection in this action.

Deitsch v. Fischer · filed 1996-12-30(e)

We note that the recent amendment to CPLR 3211 (e) (L 1996, ch 501) does not apply here.

A party waives a lack-of-standing objection unless it raises the objection in its answer or a preanswer motion to dismiss.

Gilman v. Abagnale · filed 1997-01-30(a)(3), (e)

It is essential, however, that a party raise the legal argument of lack of standing to sue in its answer to a complaint or in a preanswer motion to dismiss (see, CPLR 3211 [a] [3]; [e]; see also, Dougherty v City of Rye, 63 NY2d 989, 991). The failure to do so is fatal in that it constitutes a waiver of this argument at all subsequent phases of the litigation (see, Dougherty v City of Rye, supra; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656; National Assn. of Ind. Insurers v State of New York, 207 AD2d 191, 197; Muchnick v Alcamo Supply & Contr. Corp., 169 AD2d 711).

Section 3211 requires a defendant to raise the Statute of Frauds defense in an answer or a motion to dismiss; otherwise, the defense is waived.

Con-Solid Contracting, Inc. v. Litwak Development Corp. · filed 1997-02-10(a)(5), (e)

The defendants, including the respondents, waived the defense of the Statute of Frauds by failing to assert it in either their verified answer or a motion to dismiss (see, CPLR 3211 [a] [5]; [e]; Raoul v Olde Vil. Hall, 76 AD2d 319, 333; Reich v Knopf, 65 AD2d 618, 619).

CPLR 3211(e) permits a motion to dismiss for lack of personal jurisdiction before the responsive pleading is due.

Rochdale Village Inc. v. Harris · filed 1997-04-15(e)

Here, service of the responsive pleading, the respondent’s answer, was not required until March 5, 1997 when the matter would have gone to trial absent the making of the instant motion. On that date, the respondent could have submitted her answer which could have contained the affirmative defense of lack of personal jurisdiction. In the alternative, respondent has timely moved to dismiss upon such ground as permitted by CPLR 3211 (e).

A lack of personal jurisdiction defense under CPLR 3211(a)(8) may be waived by stipulation, but a lack of subject matter jurisdiction defense under CPLR 3211(a)(2) may not.

Morrison v. Budget Rent A Car Systems, Inc. · filed 1997-04-28(a)(2), (a)(8)

Having made these distinctions, we turn to the question of whether the defendants’ claim of sovereign immunity falls under the purported defense of lack of personal jurisdiction (CPLR 3211 [a] [8]), which the defendants have waived, or subject matter jurisdiction (CPLR 3211 [a] [2]), which is not amenable to waiver. ... We conclude that in the case before us the proffered sovereign immunity bar entails the affirmative defense of lack of subject matter jurisdiction. Because that is so, and because the defendants’ waiver of subject matter jurisdiction was inoperative, the plaintiff may not rely on the stipulations to defeat the affirmative defense of lack of subject matter jurisdiction.

A lack-of-capacity defense is not waived when the lack of capacity arises after issue has been joined.

George Strokes Electrical & Plumbing, Inc. v. Dye · filed 1997-06-19(e)

Although the affirmative defense of lack of capacity to sue is generally waived by a plaintiff’s failure to raise it in a motion to dismiss or in a responsive pleading (see, CPLR 3211 [a] [3]; [e]), there was no waiver here since defendant’s lack of capacity did not arise until well after issue had been joined in the action.

A party waives a lack-of-capacity ground for dismissal by omitting it from its responsive pleading and initial motion to dismiss.

Fastag v. Chemical Bank · filed 1997-09-16(e)

We also agree with the IAS Court that respondent waived its lack of capacity argument by failing to include such ground for dismissal in its responsive pleading or in its initial motion to dismiss (CPLR 3211 [a] [3]; [e]).

The 1997 amendment to CPLR 3211(e) applies to pending actions, but defendants who pleaded improper service before January 1, 1997, had 60 days from that date to move for dismissal on that ground.

Chemical Financial Services Corp. v. Zagaro · filed 1997-06-26(e)

Consequently, defendants who served answers containing improper service of process defenses prior to January 1, 1997, had up until March 3, 1997 (60 days after the amended statute became effective) to move for dismissal of their actions on that ground (Fryburg, The Process of Personal Service of Process, NYLJ, Dec. 18, 1996, at 1, col 1).

A defense waived under CPLR 3211(e) may be raised in an amended pleading with court leave if the delay causes no prejudice or surprise.

McGaulley v. Telling, Kelting & Potter, P.C. · filed 1997-07-10(e)

Initially, we reject defendants’ argument that because plaintiff failed to allege a Statute of Limitations defense in his reply to the counterclaim or in his motion for summary judgment, a waiver occurred and no further application could be made in that regard (see, CPLR 3211 [a] [5]; [e]). This argument is without merit since plaintiff sought leave to amend his reply pursuant to CPLR 3025 (b), which gives the court discretionary power to permit an amendment to a pleading “at any time by leave of court or by stipulation of all parties” (see, Seda v New York City Hous. Auth., 181 AD2d 469, 470, lv denied 80 NY2d 759).

Section 3211(e) waives a defense of lack of personal jurisdiction when a defendant appears and litigates without raising it.

Kroupova v. Hill · filed 1997-08-14(e)

Concerning the cross-appeal, defendant Hill’s claim that he was not properly served was waived, counsel for codefendant Transit Authority having appeared and litigated the case on his behalf throughout the pretrial proceedings without ever raising a defense of lack of personal jurisdiction (CPLR 3211 [e]).

For an answer served before the 1997 amendment took effect, Section 3211(e)’s 60-day period to move on a service objection begins January 1, 1997.

Mathieu v. Braxton · filed 1998-01-28(e)

It follows from Auger (supra) and Phoenix that, in those cases where a defendant’s answer was served prior to the effective date of the amended version of CPLR 3211 (e), the 60-day period begins to run from January 1, 1997.

CPLR 3211(e)’s 60-day deadline for moving to dismiss based on improper service applies to pending actions, measured from the amendment’s effective date.

Fleet Bank, N. A. v. Riese · filed 1998-02-17(e)

Defendant’s defense of improper service was properly deemed waived since he failed to move to dismiss the complaint based on this defense by March 3, 1997, i.e., 60 days after the January 1, 1997 effective date of chapter 501 of the Laws of 1996 amending CPLR 3211 (e) so as to require such a motion within 60 days after service of a pleading asserting such a defense (Chemical Fin. Servs. Corp. v Zagaro, 173 Misc 2d 745, 748).

A defense waived under CPLR 3211 (e) may still be added to an answer with leave of court if the delay causes no prejudice or surprise to the other party.

Endicott Johnson Corp. v. Konik Industries, Inc. · filed 1998-04-16(e)

It is settled law that defenses waived under CPLR 3211 (e) can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025 (b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay (see, McGaulley v Telling, Kelting & Potter, 241 AD2d 669; Armstrong v Peat, Marwick, Mitchell & Co., 150 AD2d 189, 190).

CPLR 3211(e) waives a personal jurisdiction objection when a defendant fails to raise it in a responsive pleading.

Domansky v. Berkovitch · filed 1998-06-02(e)

Nor was the IAS Court deprived of jurisdiction by reason of the circumstance that plaintiffs filed their summons and complaint with the court clerk subsequent to serving them upon defendants, since the added defendants’ reliance upon this defect in the proper sequence of filing and service was waived by their failure to raise the issue of personal jurisdiction in their responsive pleading (CPLR 3211 [e]) ... (see, Matter of Fry v Village of Tarrytown, 89 NY2d 714).

Section 3211(e) requires a respondent to raise defective service in the answer to preserve a personal jurisdiction objection.

Ciampi v. Sgueglia · filed 1998-07-16(e)

Although it is not entirely clear from respondent’s brief whether he is contending that he never was served with the violation petition or, rather, that he merely is alleging defective service in that he was not personally served, respondent failed to raise defective service in either his answer (see, CPLR 3211 [a] [8]; [e]) or his objections to the Hearing Examiner’s decision (see, Family Ct Act § 439 [e]) and, hence, this issue is not properly before us.

For actions pending when the 1996 amendment took effect, § 3211(e)’s 60-day period to move on a pleaded improper-service objection began January 1, 1997.

Wade v. Kim · filed 1998-12-07(e)

Accordingly, to avoid injustice, we hold that the subject amendment to CPLR 3211 (e) is retroactive but the starting time of the requisite 60-day period in pending actions is deemed to be January 1, 1997, the amendment’s effective date (accord, Fleet Bank v Riese, 247 AD2d 276).

For a case pending on January 1, 1997, CPLR 3211(e) required a motion to dismiss on jurisdictional grounds within 60 days.

LaSorsa v. Corrigan · filed 1998-12-07(e)

As this case was pending as of January 1, 1997, the defendant was required to move to dismiss the complaint on jurisdictional grounds within 60 days thereof (see, CPLR 3211 [e]; Wade v Byung Yang Kim, 250 AD2d 323 [decided herewith]; Fleet Bank v Riese, 247 AD2d 276). Since the defendant’s motion was served on February 28, 1997, it was timely made (see, CPLR 2211).

Section 3211 treats personal jurisdiction and statute of limitations defenses as waived unless affirmatively raised, but does not impose that waiver rule on a defense that an entity cannot be sued.

Lauro v. City of New York · filed 1999-02-25

However, the New York C.P.L.R., although providing that the defenses of personal jurisdiction and statute of limitations must be affirmatively pled or will be deemed waived, contains no such provision with respect to a defense that the entity is not suable.

Under CPLR 3211(e), defendants waived their improper-service defense by failing to move to dismiss on that ground within 60 days of the January 1, 1997 effective date of the 1996 amendment.

Estate of Garcia v. Thomas · filed 1999-01-25(e)

The defendants’ defense of improper service was waived since they failed to move to dismiss the complaint based on this defense within 60 days of January 1, 1997, the effective date of chapter 501 of the Laws of 1996 amending CPLR 3211 (e).

A motion under CPLR 3211 made after the time to answer has expired is untimely.

Miller v. Weyerhaeuser Co. · filed 1999-01-13(e)

Commercial served a notice of appearance and moved under CPLR 3211 11 months after its time to appear or answer had expired. This is too late for a motion under CPLR 3211.

Section 3211(e)'s usual deadline for moving to dismiss on limitations grounds does not waive the defense in a tax assessment proceeding where RPTL 712 permits a later motion and the delay causes no prejudice.

Abramov v. Board of Assessors · filed 1999-01-28(e)

Such a motion must be made prior to the time in which to serve an answer, and the failure to do so will result in a waiver of the defense unless raised in the responsive pleading (see, CPLR 3211 [e]; cf., Siegel, NY Prac § 111, at 175-176 [2d ed]). Here, however, respondents were permitted, but not required, to serve an answer pursuant to RPTL 712. Moreover, the last sentence of RPTL 712 (1) provides that “[a] motion to dismiss the petition shall not be denied merely on the ground that an answer has been deemed made”. The plain language of this statute compels the finding that respondents were not required to move to dismiss prior to the expiration of the time in which to answer (see, Matter of Stowell v Lesser, 67 AD2d 1068). In the absence of prejudice to petitioners due to respondents’ delay, we are constrained to conclude that the Statute of Limitations defense was not waived.

CPLR 3211(e) required defendants who had pleaded improper service to move to dismiss on that ground within 60 days of January 1, 1997, or waive the defense.

Alaska Seaboard Partners v. Anninos · filed 1999-03-15(e)

The Supreme Court properly concluded that ...the appellants waived the defense of improper service by failing to move to dismiss on that ground within 60 days of January 1, 1997, the effective date of the 1996 amendment to CPLR 3211 (e) (see, Wade v Byung Yang Kim, 250 AD2d 323; Fleet Bank v Riese, 247 AD2d 276).

Section 3211(e) permits an extension of the 60-day deadline to move to dismiss for improper service when the defendant proves that ordinary diligence could not have produced a timely motion.

Abitol v. Schiff · filed 1999-05-18(e)

In the court’s opinion, a showing of “undue hardship” in this context requires proof that the motion could not have been made within the time limited by CPLR 3211 (e) by the exercise of ordinary diligence.

A standing objection is waived if it is not raised in a preanswer motion or responsive pleading.

Santoro v. Schreiber · filed 1999-07-09(a)(3), (e)

Respondents waived any objection to petitioner’s standing because they did not raise the defense of lack of standing either in a preanswer motion or in their responsive pleadings (see, CPLR 3211 [a] [3]; [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657; Gilman v Abagnale, 235 AD2d 989, 990).

Section 3211(e) deems a release defense waived if it is omitted from the answer or a motion to dismiss, but permits it to be raised in an amended answer absent prejudice.

Ficorp, Ltd. v. Gourian · filed 1999-07-15(e)

Although CPLR 3211 (e) does deem the defense of release waived if not asserted in the answer or in a motion to dismiss, it can be raised in an amended answer in the absence ...of prejudice (see, Barrett v Kasco Constr. Co., 56 NY2d 830), inasmuch as it is not a jurisdictional defense (see, Addesso v Shemtob, 70 NY2d 689).

CPLR 3211(e) requires a defendant seeking more than sixty days to move on a service objection to show that ordinary diligence could not have produced a timely motion.

Yellow Book Co. v. Rose · filed 1999-10-27(e)

The standard to be applied in order to show “undue hardship” in this context requires proof that the motion could not have been made within the time limited by CPLR 3211 (e) by the exercise of ordinary diligence.

Section 3211(e) waives a limitations defense omitted from a responsive pleading or dismissal motion, but the defense may be raised on summary judgment absent surprise, prejudice, or objection.

Allen v. Matthews · filed 1999-11-24(e)

CPLR 3211 (e) provides that certain defenses enumerated therein (including the Statute of Limitations) are waived if not raised either in a responsive pleading or by way of a CPLR 3211 (a) motion to dismiss. ... Thus, an unpleaded defense may not only be invoked to defeat a motion for summary judgment, but in the absence of surprise or prejudice to, or objection by, the opposing party, it may also serve as the basis for an affirmative grant of such relief (see, Seaboard Sur. Co. v Nigro Bros., supra, at 574; Rogoff v San Juan Racing Assn., 77 AD2d 831, 832, affd 54 NY2d 883).

A plaintiff waives an objection to an untimely motion to dismiss by retaining and opposing the motion on its merits without raising its lateness.

Professional Billing Resources, Inc. v. Haddad · filed 2000-02-04(e)

Because defendant’s time to answer was not automatically extended by his article 85 motion (the stay not having commenced until the court’s issuance of an order therefor — see, CPLR 8502), defendant’s motion to dismiss, which was served after the expiration of the time to answer, was untimely under CPLR 3211 (e). The court finds, however, that the lateness of the motion to dismiss was waived by plaintiff because plaintiff accepted, retained and opposed the motion, addressing the merits therein, and failed to ever raise an objection to the timeliness of the motion.

Section 3211(e) preserves a lack-of-standing defense pleaded in the answer, but waives a Statute of Limitations defense omitted from the answer and from a timely preanswer motion.

Lefkowitz v. Kaye, Scholer, Fierman, Hays & Handler · filed 2000-04-17(e)

The Supreme Court erred in holding that the defendant waived the affirmative defense of lack of standing since the defense was pleaded in the answer (see, CPLR 3211 [e]; Hatch v Tu Thi Tran, 170 AD2d 649). However, the Supreme Court properly held that the defendant waived the Statute of Limitations defense by failing to plead it in the answer or in a preanswer motion (see, Hatch v Tu Thi Tran, supra). While the defendant raised the defense of the Statute of Limitations in its motion to dismiss, that motion did not qualify as a preanswer motion since it was made after the time for service of the responsive pleading had expired (see, CPLR 3211 [e]).

Section 3211(e) waives a pleaded improper-service objection if the defendant does not move to dismiss within 60 days; for actions pending when the amendment took effect, that period ran from January 1, 1997, unless the court extended it for undue hardship.

Breer v. Sears, Roebuck & Co. · filed 2000-05-11(e)

The statute clearly applies to actions pending on the effective date of the statute so as to require that the motion be brought within 60 days of the effective date of the statute (i.e., on or before March 3, 1997). ... Defendant has not made a showing of undue hardship so as to extend the effect of the operation of the statute, and therefore, the defense of improper service was accordingly waived by defendant’s failure to timely move for dismissal.

Section 3211 allows a court to treat a motion labeled as one for summary judgment as a motion to dismiss when the defendant has not answered, and to address res judicata, collateral estoppel, and statute of limitations defenses.

Conte v. City of New York · filed 2002-05-02(a)(5); (e)

... the issues of res judicata, collateral estoppel and the statute of limitations were nonetheless properly before the court (see, CPLR 3211 [a] [5]; [e]) and properly addressed on the merits.

CPLR 3211 permits a motion to dismiss for failure to state a cause of action at any time.

M.D. v. Pasadena Realty Co. · filed 2002-12-31(a)(7), (e)

... this is why the rules permit a motion to dismiss the complaint on this basis to be brought at any time (CPLR 3211 [a] [7]; [el; see Holz v Rinacente Props., 197 AD2d 669; see also Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; but see Milne v Cheema, 270 AD2d 165 [CPLR 3211 (a) (2) motion]).

CPLR 3211(e) permits a previously omitted objection based on lack of subject matter jurisdiction or failure to state a cause of action to be raised in a subsequent pleading.

Ancrum v. St. Barnabas Hospital · filed 2003-01-30(e)

Defendant has also not waived the right to interpose the affirmative defense in an amended answer as CPLR 3211 (e) expressly provides that a previously omitted objection based upon lack of subject matter jurisdiction or failure to state a cause of action may be made in a subsequent pleading (Hertz Corp. v Luken, supra at 448-449).

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

Sangiacomo v. County of Albany · filed 2003-02-20(e)

Since the jurisdictional defect asserted relates to commencement and not to service of process, defendants had no obligation to move pursuant to CPLR 3211 (e).

CPLR 3211(e)’s 60-day limit for moving to dismiss for lack of service can be subject to equitable estoppel.

Moustafa v. Jamaica Hospital Medical Center · filed 2003-04-07(e)

We reject the plaintiffs contention that the defendant waived its defense of lack of service by failing to move to dismiss the complaint on that ground within 60 days of serving its answer (see CPLR 3211 [e]). Under the circumstances of this case, we conclude that the plaintiff should be equitably estopped from asserting the time limit of CPLR 3211 (e) (see Brown v City of New York, 264 AD2d 493 [1999]).

CPLR 3211(e)'s 60-day waiver provision applies to summary proceedings under RPAPL 713; proceedings under RPAPL 711(1) and (2) are excluded.

Riverton Associates v. Harvey · filed 2003-08-14(e)

By its express terms, CPLR 3211 (e) does not apply to summary proceedings commenced pursuant to RPAPL 711 (1), (2) (holdover and nonpayment proceedings where a landlord-tenant relationship exists). ... Accordingly, the 60-day waiver provision applies to summary proceedings commenced pursuant to RPAPL 713.

A defense that a corporation lacks capacity to sue is waived unless raised in the answer or in a motion to dismiss before answering.

FBB Asset Managers, Inc. v. Freund · filed 2003-12-15(a)(3), (e)

Contrary to the contention of the respondents Esther Freund, Leopold Freund, and Jewelers World, Inc., their defense that the appellant corporation was dissolved by proclamation of the New Jersey Department of the Treasury before the commencement of the instant action and proceeding speaks to the plaintiffs legal capacity to sue, and not to the sufficiency of its claims for relief. Therefore, they were bound to raise this defense in their answers, or in a motion to dismiss made prior to answering. They took neither step, and thus waived that defense (see CPLR 3211 [a] [3]; [e]; Harte v Richmond County Sav. Bank, 224 AD2d 585 [1996]; Erljur Assoc. v Weissman, 134 AD2d 321 [1987]; Lorisa Capital Corp. v Gallo, 119 AD2d 99 [1986]).

A defendant who appears and moves to dismiss for defective service waives a later long-arm jurisdiction defense under CPLR 3211(e).

Wideman v. Barbel Trucking, Inc. · filed 2004-01-27(e)

But defendant’s prior appearance and motion constituted a submission to the court’s jurisdiction and a waiver of the long-arm jurisdictional defense (CPLR 3211 [e]; Wiesener v Avis Rent-A-Car, 182 AD2d 372 [1992]; see also Urena v NYNEX, Inc., 223 AD2d 442 [1996]).

Section 3211(e) permits an extension of the 60-day period to move to dismiss for improper service upon a sufficiently supported showing of undue hardship.

Aris v. McGregor · filed 2004-03-11(e)

CPLR § 3211(e) permits a Court to extend a defendant's time to move beyond the 60 day period upon the ground of "undue hardship." ... Here the lack of detailed explanation relating the alleged hardship to the facts in this case would not warrant a finding of undue hardship. ... Based on the foregoing that part of defendant's motion which seeks leave to move for an extension of time to make a motion to dismiss based on improper service of process, is denied.

A defendant waives an objection to service of the summons and complaint by failing to specify it in a subsequent motion to dismiss.

17 East 89th Street Tenants, Inc. v. Tsabbar · filed 2004-04-22(e)

The affirmative defense challenging the manner of service of the summons and complaint was waived when defendant failed to specify this ground in his subsequent motion to dismiss (CPLR 3211 [e]).

Section 3211(e) permits waiver of a late-notice defense when the insurer fails to raise it in its answer.

Hotel des Artistes, Inc. v. General Accident Insurance of America · filed 2004-04-15(e)

GAIC’s failure to disclaim upon the ground of late notice, and failure to raise the late-notice issue in its answer (see CPLR 3211 [e]), constitute a waiver of this defense.

Section 3211(e) treats an objection to improper service as waived when a defendant appears and actively participates in the action before seeking leave to answer late.

McNelis v. McNelis · filed 2004-04-26(e)

The defendant waived his claim that service was not properly effected by appearing in the action and actively participating in the proceedings before moving for leave to serve a late answer (see CPLR 3211 [e]; Weslock v Weslock, 280 AD2d 278 [2001]; Frankel v Siravo, 278 AD2d 66 [2000]; Dahlberg v Dahlberg, 105 AD2d 968 [1984]).

Section 3211(e) treats a lack-of-jurisdiction defense as waived when a defendant answers without raising it and later moves to dismiss on that ground.

Daly v. Metropolitan Life Insurance · filed 2004-05-20(e)

ABM failed to raise lack of jurisdiction as an affirmative defense when it answered the third-party complaint. Inasmuch as this motion was brought after having answered the complaint, any defenses based on lack of jurisdiction are deemed waived pursuant to the CPLR (CPLR 3211 [e]; Air Tite Mfg. v Acropolis Assoc., 202 AD2d 1067 [4th Dept 1994]; see also, Aretakis v Tarantino, 300 AD2d 160 [1st Dept 2002]; Worldcom, Inc. v Dialing Loving Care, 269 AD2d 159 [1st Dept 2000]).

A lack-of-capacity defense under CPLR 3211(a)(3) must be raised before the answer is served or asserted in the answer.

Cupo v. Babcock Borsig Power, Inc. · filed 2004-06-07(e)

Although it is not apparent whether any of these defendants had previously been aware of the lack of capacity of each plaintiff to bring these actions as a “personal representative,” a motion to dismiss upon this ground, pursuant to CPLR 3211 (a) (3), should have been made prior to the service of the answer, or alternatively, asserted therein (CPLR 3211 [e]).

A motion to dismiss for lack of capacity under CPLR 3211(a)(3) must be made before the answer is served, or the objection must be asserted in the answer.

Matter of Seventh Jud. Dist. Asbestos Litig. · filed 2004-06-07(e)

Although it is not apparent whether any of these defendants had previously been aware of the lack of capacity of each plaintiff to bring these actions as a "personal representative," a motion to dismiss upon this ground, pursuant to CPLR 3211 (a) (3), should have been made prior to the service of the answer, or alternatively, asserted therein (CPLR 3211 [e]).

Section 3211 treats a statute-of-limitations defense as waived when it is not raised in the answer or by a motion to dismiss.

Hughes v. Doherty · filed 2004-07-29(a)(5); (e)

Accordingly, the defense of statute of limitations was waived (see CPLR 3211 [a] [5]; [e]).

CPLR 3211(e) deems an objection to service waived if the defendant does not timely move to dismiss, unless undue hardship supports an extension.

State Farm Fire & Casualty Co. v. Firmstone · filed 2004-07-29(e)

Since an answer was interposed on the daughter’s behalf and no motion was made either to withdraw her answer or for dismissal for lack of personal jurisdiction until more than two years later, the daughter would be deemed to have waived any objection to service by operation of CPLR 3211 (e) unless undue hardship were demonstrated and Supreme Court granted an extension of time for making the motion to dismiss (see Matter of Farkas v Chase Manhattan Bank, 290 AD2d 253, 253-254 [2002]).

CPLR 3211 requires a defendant to raise a lack-of-capacity defense in the answer or in a motion to dismiss before serving the answer, or the defense is waived.

Household Bank (SB), N.A. v. Mitchell · filed 2004-11-22(a)(3), (e)

The defendant waived his claim that the plaintiff lacked the capacity to sue a party in the State of New York because it was doing business in the state without authority in violation of Business Corporation Law § 1301, as he failed to raise that claim either in his answer or in a motion to dismiss before service of his answer (see Business Corporation Law § 1312 [a]; CPLR 3211 [a] [3], [e]; FBB Asset Mgrs. v Freund, 2 AD3d 573, 574 [2003]; Harte v Richmond County Sav. Bank, 224 AD2d 585, 586 [1996]).

CPLR 3211(e) waives a personal jurisdiction defense omitted from the first answer or preanswer dismissal motion.

McGowan v. Hoffmeister · filed 2005-02-22(e)

However meritorious the affirmative defense might have been, the law is settled that a jurisdictional defense not asserted in the first responsive pleading, whether answer or preanswer dismissal motion pursuant to CPLR 3211, is waived (CPLR 3211 [e]; Addesso v Shemtob, 70 NY2d 689 [1987]).

A party can waive a Judiciary Law § 495 defense by waiting more than six years after the action begins to assert it.

Kingsland Group, Inc. v. J.B. Satcin Realty Corp. · filed 2005-03-07(e)

We agree with the Supreme Court that the appellants waived their right to raise Judiciary Law § 495 as a defense by failing to assert it for more than six years after initiation of the action (see CPLR 3211 [e]; Harte v Richmond County Sav. Bank, 224 AD2d 585 [1996]; Muchnick v Alcamo Supply & Contr. Corp., 169 AD2d 711 [1991]).

CPLR 3211(e) does not permit an extension of time to move to dismiss for lack of personal jurisdiction when the defendant shows no undue hardship.

State Farm Fire & Casualty Co. v. Firmstone · filed 2005-05-05(e)

Inasmuch as Supreme Court found no undue hardship, there was no basis for extending the parents’ time to make their motion, defendants’ waiver continued in effect and the complaint could not be dismissed for lack of personal jurisdiction over Fiorini.

A defendant waives a release defense under CPLR 3211(a)(5) by waiting until after trial and denial of a CPLR 4404 motion to raise it.

Wise v. McCalla · filed 2005-12-05(a)(5)

Alternatively, if McCalla was acting in his capacity as a State employee, he waived the defense of release by not moving until after the trial had ended and his motion for judgment pursuant to CPLR 4404 had been denied (see CPLR 3211 [a] [5]; Nisselson v Stephens, 268 AD2d 463 [2000]).

Section 3211 permits a statute of frauds defense to be waived when it is not raised in the answer or in a motion to dismiss.

Bryant v. Broadcast Music, Inc. · filed 2006-03-28(a)(5), (e)

In addition, the Supreme Court properly determined that the appellant waived the affirmative defense of the statute of frauds by failing to assert it either in its answer to the amended complaint or in a motion to dismiss the amended complaint (see CPLR 3018 [b]; 3211 [a] [5]; [e]; 23/23 Communications Corp. v General Motors Corp., 257 AD2d 367 [1999]; Con-Solid Contr. v Litwak Dev. Corp., 236 AD2d 437 [1997]).

Section 3211(e) requires a motion to dismiss under CPLR 3211 to be timely, or it may be denied as untimely.

Diaz v. DiGiulio · filed 2006-05-09(e)

Nevertheless, Fidelity’s motion, made pursuant to CPLR 3211, was untimely (see CPLR 3211 [e]) and, thus, was properly denied.

Section 3211(e) requires a statute of limitations defense to be raised in the answer or in a pre-answer motion to dismiss, or it is waived.

Johnson v. Civilian Complaint Review Board · filed 2006-06-13(e)

Although the petition was brought well beyond the applicable four-month limitation period (see CPLR 217; Matter of Edmead v McGuire, 67 NY2d 714, 716 [1986]), respondent waived the statute of limitations defense by failing to interpose it in its answer or in a pre-answer motion to dismiss (see CPLR 3211 [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]).

A statute of limitations defense is not waived when the answer, fairly read, places the opposing party on notice that timeliness is in controversy.

115 Austin Ave, LLC v. City of Yonkers · filed 2007-02-20(a)(5), (e)

The plaintiff’s sole contention on appeal is that the defendant waived its statute of limitations defense by failing to make a preanswer motion to dismiss the complaint on that ground and by failing to assert it in the answer (see CPLR 3211 [a] [5]; [e]). We disagree.

Section 3211(e) provides that a defendant waives a defense by failing to raise it and participating in the litigation.

Casey v. Casey · filed 2007-04-10(e)

Moreover, the defendant waived the defense by failing to raise it and by participating in the litigation of the action (see CPLR 3211 [e]; ...).

Section 3211(a)(5) motions to dismiss as time-barred must be made before service of the responsive pleading is required, and conversion to summary judgment requires adequate notice under section 3211(c).

Bowes v. Healy · filed 2007-05-01(a)(5)

The defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, the plaintiffs’ causes of action to recover damages for personal injuries was untimely because it was not made before service of her responsive pleading was required (see CPLR 3211 [e]; Diaz v DiGiulio, 29 AD3d 623 [2006]). Furthermore, although the Supreme Court was authorized to treat the motion as one for summary judgment upon “adequate notice to the parties” (CPLR 3211 [c]), no such notice was given, and none of the recognized exceptions to the notice requirement are applicable here (see Mihlovan v Grozavu, 72 NY2d 506 [1988]).

Section 3211(e) requires specified objections or defenses to be raised in an answer or pre-answer motion, or they are waived.

Wells Fargo Bank Minnesota, National Ass'n v. Mastropaolo · filed 2007-05-29(e)

Under CPLR 3211 (e), any objection or defense based on a ground set forth in paragraph (1), (3), (4), (5), or (6) of CPLR 3211 (a) must be raised in an answer or in a motion made before the answer is due, or it is waived. ... Since the defendant did not raise the standing issue in his answer or in a pre-answer motion to dismiss the complaint, Wells Fargo correctly argued that the defendant did, in fact, waive any defense based on a lack of standing, pursuant to CPLR 3211 (e).

CPLR 3211 (e) does not govern an objection to a foreign court’s jurisdiction when the party does not contest the New York court’s jurisdiction.

Sung Hwan Co. v. Rite Aid Corp. · filed 2007-12-06(e)

Furthermore, inasmuch as Rite Aid is objecting to the Korean court having jurisdiction over it in the Korean action under CPLR 5304 (a) (2), and not questioning whether New York courts have jurisdiction over it pursuant to CPLR 3211 (a) (8), CPLR 3211 (e) does not apply.

CPLR 3211(e) permits waiver of a lack-of-standing defense when it is not raised in an answer or motion to dismiss.

Renee XX. v. John ZZ. · filed 2008-05-01(e)

Generally, a lack of standing is an affirmative defense that can be waived through the failure to raise it in an answer or motion to dismiss (see CPLR 3211 [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241 [2007]).

CPLR 3211(e) waives a time-bar defense if the defendant neither pleads it nor moves to dismiss on that ground.

Brown v. Nelson · filed 2008-10-02(e)

Moreover, defendant waived the defense by failing to plead it or move for dismissal on that ground (CPLR 3211 [e]).

Section 3211(e) does not waive a statute of limitations defense raised for the first time in an answer to an amended complaint.

Mendrzycki v. Cricchio · filed 2008-11-18(e)

Here, because the doctors’ statute of limitations defense (see CPLR 3211 [a] [5]) was raised in responsive pleadings submitted pursuant to CPLR 3025 (d), we conclude that the defense was not waived.

CPLR 3211(e) requires a party to raise applicable defenses in its responsive pleading or risk waiving them.

Millennium Environmental, Inc. v. City of Long Beach · filed 2008-11-25(e)

The plaintiffs only remaining challenge, to the order of the Supreme Court entered November 25, 2003, granting the defendant’s cross motion for summary judgment on the issue of liability on its counterclaims, was waived by its failure to assert in its verified reply to the counterclaims the defenses it now raises (see CPLR 3211 [e], [a] [1], [5], [6]).

Section 3211(e) treats a standing defense as waived if it is not raised as an affirmative defense or by motion to dismiss.

Aames Funding Corp. v. Houston · filed 2008-12-23(e)

In any event, even if the law of the case doctrine was inapplicable, the defendants waived the defense of standing by not raising it as an affirmative defense or by way of motion to dismiss (see CPLR 3211 [e]; Matter of Fossella v Dinkins, 66 NY2d 162, 167-168 [1985]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-243 [2007]).

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

HSBC Bank v. Dammond · filed 2009-02-24(e)

Having failed to interpose an answer or file a timely pre-answer motion which asserted the defense of standing, the respondent waived such defense pursuant to CPLR 3211 (e) (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2007]).

A defendant waives a challenge to a plaintiff’s legal capacity by failing to amend its answer to assert lack of capacity as an affirmative defense.

Guiffrida v. Storico Development · filed 2009-03-20(a)(3); (e)

Contrary to the contention of defendants, they waived their right to challenge plaintiffs legal capacity to pursue this action due to the pending bankruptcy by failing to move to amend their answer to assert plaintiffs lack of legal capacity as an affirmative defense (see CPLR 3211 [a] [3]; [e]; Edwards v Siegel, Kelleher & Kahn, 26 AD3d 789 [2006]; cf. Mehlenbacher v Swartout, 289 AD2d 651 [2001]; Hansen v Madani, 263 AD2d 881, 882 [1999]).

Section 3211(e) permits an extension of time to move to dismiss for lack of personal jurisdiction when ordinary or reasonable diligence could not have produced a timely motion.

State v. Mappa · filed 2009-06-02(e)

This court finds that the appropriate measure of the undue hardship standard contained in CPLR 3211 (e) to warrant an extension of time for making the motion to dismiss for lack of personal jurisdiction is that the motion could not have been made with the exercise of ordinary or reasonable diligence.

Under CPLR 3211(e), a standing objection that was not preserved below is waived.

People v. Coventry First LLC · filed 2009-06-30(e)

Finally, defendants’ argument that the State does not have standing to bring a claim seeking damages on behalf of life insurance policy sellers was not preserved below and is waived under CPLR 3211 (e).

A defendant waives a lack-of-standing defense by failing to raise it in a timely motion to dismiss or responsive pleading.

Lot 57 Acquisition Corp. v. Yat Yar Equities Corp. · filed 2009-06-30(e)

Since the defendant Yat Yar Equities Corp. (hereinafter Yat Yar) did not raise the defense of lack of standing in a timely motion to dismiss the complaint or in its responsive pleading, that defense is waived (see CPLR 3211 [e]; Gager v White, 53 NY2d 475, 488 [1981], cert denied 454 US 1086 [1981]; Aames Funding Corp. v Houston, 57 AD3d 808, 809 [2008]).

A defendant waives a standing objection by first raising it in opposition to summary judgment instead of in an answer or pre-answer motion to dismiss.

Citibank, N.A. v. Herrera · filed 2009-07-07(e)

However, Herrera waived any challenge to the plaintiffs standing by raising this argument for the first time only in opposition to the plaintiffs summary judgment motion, and not in his answer or in a pre-answer motion to dismiss (see CPLR 3211 [a] [3]; [e]; Matter of Fossella v Dinkins, 66 NY2d 162, 167-168 [1985]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; HSBC Bank, USA v Dammond, 59 AD3d 679 [2009]; Aames Funding Corp. v Houston, 57 AD3d 808 [2008]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2007]).

A CPLR 3211 motion to dismiss must be made within the time allowed to serve an answer unless the court extends that time.

Bennett v. Hucke · filed 2009-07-07(e)

As the plaintiff correctly contends, the motion of the defendants Alan Kirk, Alan H. Kirk, Inc., and Alan Kirk Custom Homes, Inc. (hereinafter collectively the Kirk defendants), pursuant to CPLR 3211 to dismiss the complaint was not made within the time period in which those defendants were required to serve an answer (see CPLR 3211 [e]).

A defendant waives a lack-of-standing defense by failing to raise it in a pre-answer motion or in the answer.

Countrywide Home Loans, Inc. v. Delphonse · filed 2009-07-14(e)

The defendants Anne M. Delphonse and Andre F. Delphonse (hereinafter together the Delphonses) waived the defense of lack of standing (see CPLR 3211 [a] [3]) by failing to either make a pre-answer motion to dismiss the complaint on that ground or by asserting that defense in their answer (see CPLR 3211 [e]; HSBC Bank, USA v Dammond, 59 AD3d 679, 680 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241-243 [2007]).

A failure-to-state-a-cause-of-action defense asserted in an answer may support a motion for summary judgment after issue is joined.

Light v. Light · filed 2009-07-14(a)(7), (e)

Accordingly, the appellant could move for summary judgment dismissing the complaint insofar as asserted against her after she served her answer, based upon the affirmative defense of failure to state a cause of action (see CPLR 3211 [a] [7]; [e]).

A time-bar defense is personal and is waived unless asserted by a party entitled to raise it.

Gaul v. New York State Department of Environmental Conservation · filed 2009-08-10(e)

Moreover, it is clear that the prosecution of time-barred claims is permissible since the defense of time preclusion is a personal one which is waived unless asserted by a party properly possessed of such defense (see CPLR 3211 [e]; Orix Fin. Servs., Inc v Haynes, 56 AD3d 377 [1st Dept 2008]).

A defendant waives a standing objection by failing to timely appear or answer.

Deutsche Bank National Trust Co. v. Young · filed 2009-10-20(e)

Contrary to the appellants’ contention, the Supreme Court did not err in determining that they waived the issue of standing by failing to timely appear or answer (see CPLR 3211 [a] [3]; [e]; HSBC Bank, USA v Dammond, 59 AD3d 679 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2007]).

CPLR 3211 requires a defendant to raise an improper joinder defense in a timely pre-answer motion or in its answer, or the defense is waived.

Zheng v. American Friends of Mar Thoma Syrian Church of Malabar, Inc. · filed 2009-11-04(a)(8), (e)

In this case, the Church failed to raise its defense of improper joinder in a timely, pre-answer motion to dismiss the complaint, and also failed to assert such defense in its answer. Accordingly, it waived the defense (see CPLR 3211 [a] [8]; [e]).

Under CPLR 3211(a)(3) and (e), lack of capacity to sue must be raised as a defense or the court may reach the merits.

Bethpage Water District v. Daines · filed 2009-11-05(a)(3), (e)

As it is not a jurisdictional defect, unless capacity is raised as a defense, as it was here, it will not prevent a court from reaching the merits (see CPLR 3211 [a] [3]; [e]; City of New York v State of New York, 86 NY2d at 292).

Section 3211(e) permits jurisdictional and statute-of-limitations defenses to be raised in an answer or pre-answer motion; its 60-day motion deadline does not apply to a jurisdictional objection unrelated to improper service.

Goldenberg v. Westchester County Health Care Corp. · filed 2011-03-24(e)

These affirmative defenses are properly raised in either an answer or a pre-answer motion to dismiss (see CPLR 3211 [e]). And because its jurisdictional objection was not to improper service, WCHCC was not, as Goldenberg also argues, required to move to dismiss within 60 days of service of its answer (see id.; see also Siegel, NY Prac § 111, at 201).

A lack-of-capacity defense that arises after joinder of issue is not waived by its absence from a pre-answer motion or responsive pleading.

Lance International, Inc. v. First National City Bank · filed 2011-07-21(e)

While a defense that a party lacks capacity to sue (see CPLR 3211 [a] [3]) is waived if not raised in a pre-answer motion or in a responsive pleading (see CPLR 3211 [e]), plaintiffs lack of capacity did not arise until after joinder of issue, and therefore, defendant did not waive that defense (see George Strokes Elec. & Plumbing v Dye, 240 AD2d 919, 920 [1997]).

Section 3211(e) waives a defendant’s standing objection if it is not raised in an answer or a timely preanswer motion to dismiss.

Deutsche Bank National Trust Co. v. Pietranico · filed 2011-07-27(e)

In any event, such claims, which are predicated upon a purported lack of standing on the part of the plaintiff, were waived by the defendant’s failure to answer or to assert a preanswer motion to dismiss the complaint.