State of New York
Supreme Court : County of Monroe

Plaintiff,

- against -

Index No. 97/00807

Defendant.

_______________________________

ANDREW V. SIRACUSE, J.

This is a personal injury case arising from an alleged slip and fall on property owned at the time by the defendant. After the accident, but before the commencement of this action, defendant filed in bankruptcy and was discharged.

Plaintiff commenced this action in February of 1997. In a timely pro se answer to the summons and complaint, purportedly served on February 10, 1997, defendant failed to raise any affirmative defenses. Within 20 days of this answer, however, he moved through his attorney to dismiss the complaint on grounds of discharge in bankruptcy and failure to obtain personal jurisdiction.

At oral argument defendant rested his case on the bankruptcy issue. Plaintiff did not contest the dispositive effect of the defense, but instead maintained that the defenses were waived because they had not been contained in the answer. The sole issue presented here is whether this motion, under CPLR 3211 (a)(5) and (a)(8), and brought during the time allowed for service without leave of an amended answer under CPLR 3025, may be sustained in light of the waiver provisions of CPLR 3211 (e). This court holds that it may, and that the complaint should be dismissed.

The mandate of CPLR 3211 (e) is clear and unambiguous:

At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading. A motion based upon a ground specified in paragraphs two, seven or ten of subdivision (a) may be made at any subsequent time or in a later pleading, if one is permitted. An objection based upon a ground specified in paragraphs eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he does not raise such objection in the responsive pleading.

The leading case is Solarino v Noble (55 Misc 2d 429). The subsequent history of Solarino is complex, mostly because it involves cases with significantly different fact patterns that are insufficiently distinguished on their facts. In Adesso v Shemtob (70 NY2d 689) the Court of Appeals held that a second motion raising new defenses was untimely. This was not the situation in Solarino, where there was only one (prompt if not timely) motion; but the Second Department concluded, in DeFilippis v Perez (148 AD2d 490), that after Adesso the Solarino case was no longer controlling.

The Second Department has retreated from this perhaps hasty conclusion. Hickey v Hutton (182 AD2d 801) distinguished DeFilippis on the grounds that there the defendant had previously moved to dismiss the complaint without mentioning the grounds raised in the motion under consideration. More recently, in Occhipini v Kelly (208 AD2d 817), that Court has cited with approval Seda v New York City Housing Authority (181 AD2d 469), a First Department case allowing an amended answer three years after the initial pleading where there was no intervening motion and no showing of prejudice to the plaintiff.

The Third Department has also approved of Solarino (in Naccarato v Kot, 124 AD2d 365); only the Fourth Department has not addressed this issue. (Hanover v Finnerty [225 AD2d 1054], cited by the plaintiff, merely restates the general rule set out in CPLR 3211[e]). The commentators, however, are uniformly in agreement; Weinstein-Korn-Miller states:

[W]here no prior CPLR 3211(a) motion is made, there is no reason to infer the absolute waiver of a jurisdictional defense by reason of its omission from the original answer, because an answer amended as of right is merely the final version of the original pleading it replaces (7 Weinstein-Korn-Miller, NY Civ Prac § 3211.04, at 32-37).

Affirmative defenses not pleaded are "waived," but the rigor of this waiver is considerably alleviated by the liberal allowance of amendments to the pleading (op.cit., § 3211.03, at 32-28)

Since an amendment as of right under CPLR 3025(a) is nothing more than a final version of the original pleading that it replaces, it should be able to include even a jurisdictional defense omitted from the original answer. To hold otherwise may divest CPLR 3025(a) of much of its purpose (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:62, at 89)

April 28, 1997

Andrew V. Siracuse, J.S.C.