CPLR R. 3211(e) Number, time and waiver of objections; motion to plead over
Peterson v JJ Real Estate, Inc., 2011 NY Slip Op 01819 (App. Div. 2nd 2011)
In effect, the plaintiffs merely substituted the Estate as a party defendant in place of the decedent. The failure of the decedent's guardian to raise the affirmative defense of lack of personal jurisdiction in the three answers served prior to the service of the plaintiffs' second amended complaint or to move on that ground within 60 days of serving those answers, waived the defense of lack of personal jurisdiction (see CPLR 3211[e]; Federici v Metropolis Night Club, Inc., 48 AD3d 741, 742; cf. Mendrzycki v Cricchio, 58 AD3d 171). "[T]he substitution of a party because of death does not extend or renew the time to take any procedural step that has expired" (Federici v Metropolis Night Club, Inc., 48 AD3d at 742). Accordingly, the Supreme Court correctly denied the Estate's motion to dismiss the second amended complaint insofar as asserted against it.