CPLR R. 3025(d); R. 3211(e): Affirmative Defense Pleaded in Amended Answer, Not in Initial Answer

CPLR R. 3025 Amended and supplemental pleadings
(d) Responses to amended or supplemental pleadings

CPLR R. 3211 Motion to dismiss
(e) Number, time and waiver of objections; motion to plead over

Mendrzycki v Cricchio, 2008 NY Slip Op 09044 (App. Div, 2nd)

On this appeal, we are presented with the principal question of whether
a defendant may assert a statute of limitations defense for the first
time in an answer served pursuant to CPLR 3025(d) and responsive to an
amended complaint served pursuant to CPLR 3025(b), or whether such a
defense is waived by not having been pleaded in the original answer to
the initial complaint. We hold that such a defense is not waived as the
answer presently under dispute, which was required by CPLR 3025(d),
constitutes an original answer to the amended complaint

CPLR 3211(e) provides in pertinent part, "[a]ny 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 [a pre-answer
motion to dismiss] or in the responsive pleading." 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. That statute provides, in
pertinent part, that "there shall be an answer or reply to an amended
or supplemental pleading if an answer or reply is required to the
pleading being amended or supplemented" (CPLR 3025[d]; see [*3]Westinghouse Elec. Supply Co. v Pyramid Champlain Co., 193 AD2d 928, 930; Madison-Murray Assocs. v Perlbinder,
188 AD2d 362; Siegel, Practice Commentaries, McKinney's Cons Laws of
NY, Book 7B, CPLR C3025:21). Although CPLR 3025(d) is silent as to
whether new affirmative defenses may be raised in an answer served
under this subdivision, significantly, an amended complaint is deemed
to supersede an original complaint, and thus, a defendant's original
answer has no effect
(see Chalasani v Neuman, 64 NY2d 879; Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650; O'Ferral v City of New York, 8 AD3d 457, 459; John W. Cowper Co. v Buffalo Hotel Dev. Venture, 99 AD2d 19, 23-24; Stella v Stella,
92 AD2d 589). As such, an answer to an amended complaint served
pursuant to CPLR 3025(d) is in fact an original answer to the amended
complaint, and thus, affirmative defenses raised in that answer are not
limited to those asserted in the original answer.

We recognize that plaintiffs may claim undue prejudice and
surprise from the application of this rule. However, the primary focus
is "the effect of the amended complaint served by plaintiff [ ],"
rather than "the effect of the subsequent answer" (Boulay v Olympic Flame,
165 AD2d 191, 193). Since an amended complaint supplants the original
complaint, it would unduly prejudice a defendant if it were bound by an
original answer when the original complaint has no legal effect. In
contrast, a supplemental complaint, which is not at issue here,[FN1] does not supersede the original complaint, but is "in addition to it"
(Pimsler v Angert, 1 AD2d 783, 783; see Lovisa Constr. Co. v Facilities Dev. Corp., 148 AD2d 913, 915; Stella v Stella, 92 AD2d 589). In such circumstances, the original answer remains in effect (see Stella v Stella,
92 AD2d at 589), such that a defendant could not assert a new
affirmative defense in its answer to the supplemental complaint unless
it is responsive to the new matter alleged (see Garden State Brickface Co. v Stecker,
130 AD2d 707, 709). Accordingly, we hold that a defendant may raise a
statute of limitations affirmative defense for the first time in an
answer to an amended complaint served pursuant to CPLR 3025(d) (see Boulay v Olympic Flame, 165 AD2d 191; Stella v Stella, 92 AD2d 589; see also Iacovangelo v Shepherd, 5 NY3d 184, 186 n; cf. Addesso v Shemtob, 70 NY2d 689).

Here, upon being served with an amended complaint, the doctors
were required by CPLR 3025(d) to respond, and because the amended
complaint superseded the initial complaint, despite the doctors'
failure to raise a statute of limitations affirmative defense in their
original answers to that complaint, the doctors did not waive their
rights to assert that defense in their answers to the amended
complaint. We note that, although the doctors' time to amend their
original answers as of right pursuant to CPLR 3025(a) had expired, and
they did not move for leave to amend those answers pursuant to CPLR
3025(b), they were not required to obtain leave to amend their answers,
since the answers to the amended complaint were submitted pursuant to
CPLR 3025(d)

Thus, the Supreme Court erred in granting that branch of the
plaintiff's cross motion which was to strike the doctors' respective
affirmative defenses based on the statute of limitations as first
raised in their answers to the amended complaints served pursuant to
CPLR 3025(d).

1.  A plaintiff cannot avoid the application of this rule by simply
denominating as a "supplemental" pleading one that asserts new injuries
and a new category of damages, and which is therefore properly an
amended pleading
(see Fuentes v City of New York, 3 AD3d 549, 550; Pearce v Booth Mem. Hosp., 152 AD2d 553, 554)

The bold is mine.

CPLR R. 3211(a)(7) Appellate Division, Second Dep’t Corrects Itself

Hat tip to Damin J. Toell, Esq. for the heads up.

Butler v Catinella, 2008 NY Slip Op 09018 (App. Div., 2nd)

In the context of New York civil litigation, CPLR 3211 is a "bread and
butter" statute. CPLR 3211 encompasses procedural nuances which touch
upon a huge spectrum of factual and legal scenarios. On the instant
appeal, we take the opportunity to reconsider whether the defense of
failure to state a cause of action, a ground listed in CPLR 3211(a)(7),
may properly be interposed in an answer. In several cases, this Court
has stated that this defense may not be included in the answer, but
must be raised by appropriate motion pursuant to CPLR 3211(a)(7). For
the reasons that follow, we conclude that those cases do not articulate
the correct legal standard and, therefore, should no longer reflect the
jurisprudence of the Second Judicial Department.

Continue reading “CPLR R. 3211(a)(7) Appellate Division, Second Dep’t Corrects Itself”

CPLR § 308(2); CPLR R. 3211(a)(8)

CPLR § 308  Personal service upon a natural person
(2) by delivering the summons within the state to a person of suitable age…

CPLR R. 3211 Motion to dismiss
(a)(8)the court has not jurisdiction of the person of the defendant

Pressley v Shneyer, 2008 NY Slip Op 08412 (App. Div., 1st)

Order, Supreme Court, New York County (Edward H. Lehner, J.),
entered July 11, 2007, which, insofar as appealed from, denied
defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint
as against him in his individual capacity, unanimously affirmed,
without costs.
Plaintiff satisfied the burden of establishing personal
jurisdiction over defendant by service pursuant to CPLR 308(2)
. At the
traverse hearing, the process server testified that he delivered the
summons with notice to a suitable person at defendant's place of
business, and that this person accepted the documents before handing
them back and directing him to place them in defendant's mailbox (see Cowan, Liebowitz & Latman v New York Turkey Corp.,
111 AD2d 93 [1985]). The process server also stated that the following
day he mailed a copy of the summons with notice to defendant's place of
business. There is no basis for disturbing the court's findings as to
the credibility of the process server (see Schorr v Persaud, 51 AD3d 519
[2008]). Furthermore, although plaintiff failed to list the individual
defendant's name on the mailing envelope, this did not render service
on him invalid, since the summons gave ample notice to defendant, an
attorney, that he was being sued in his individual capacity
(see Albilia v Hillcrest Gen. Hosp., 124 AD2d 499 [1986]).

CPLR R. 3211(a)(1), CPLR R. 3211(a)(2), CPLR R. 327, and a forum selection clause

CPLR R. 3211 Motion to dismiss

CPLR R. 3211(a)(1) a defense is founded upon documentary evidence
CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action
CPLR R. 327 Inconvenient forum

Lischinskaya v Carnival Corp., 2008 NY Slip Op 07875 (App. Div., 2d)

While we thus find that the forum selection clause upon which
Carnival relies does not contravene federal law, we nevertheless
conclude that the Supreme Court was incorrect in holding that
enforcement of that clause deprived it of subject matter jurisdiction
"A court lacks subject matter jurisdiction when it lacks the competence
to adjudicate a particular kind of controversy in the first place" (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243). The competence of the Supreme Court to adjudicate maritime tort cases has not been questioned (see e.g. Mulhern v Manhasset Bay Yacht Club, 43 AD3d 425; Ayala v S.S. Fortaleza, 40 AD3d 440; Hayes v City of New York, 34 AD3d 208; Smith v Lone Star Indus., 1 AD3d 860).
Rather, the defendant's argument here is that the jurisdiction of the
court has been divested by a term of the contract between the parties.
That argument has been rejected, for good reason, as "hardly more than
a vestigial legal fiction" (M/S Bremen v Zapata Off-Shore Co., 407 US at 12).

"Subject matter jurisdiction . . . is not dependent upon the
state of facts which may appear in a particular case, arising, or which
is claimed to have arisen, under that general question" (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166, quoting Hunt v Hunt, 72 NY 217, 229). As "a court of original, unlimited and unqualified jurisdiction" (Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718, quoting Kagen v Kagen, 21 NY2d 532, 537; see Lacks v Lacks, 41 NY2d 71, 75), the Supreme Court of the State of New York cannot be divested of its jurisdiction even by the Legislature (see Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 339). It is axiomatic that a court cannot be divested of its subject matter jurisdiction by a contract (see Wm. H. Muller & Co. v Swedish American Line Ltd., 224 F2d 806, 808, cert denied 350 US 903; Sliosberg v New York Life Ins. Co., 217
App Div 685, 688-689). Thus, while the forum selection clause at issue
here may be enforceable as a term of the contract between the parties,
it does not affect the jurisdiction of the Supreme Court (see LFC Lessors, Inc. v Pacific Sewer Maintenance Corp., 739 F2d 4, 6-7; Central Contracting Co. v Maryland Cas. Co., 367 F2d 341, 345).

We recognize that there is an ongoing debate in the federal
courts as to the nature of a dismissal pursuant to a contractual forum
selection clause
(see Asoma Corp. v SK Shipping Co., Ltd., 467 F3d 817, 822; New Moon Shipping Co., Ltd. v MAN B & W Diesel AG, 121 F3d 24, 28; Licensed Practical Nurses, Technicians and Health Care Workers of New York, Inc. v Ulysses Cruises, Inc., 131
F Supp 2d 393, 402-409) and that we have, in the past, affirmed such
dismissals for lack of subject matter jurisdiction, pursuant to CPLR
(see LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535).
These two cases should no longer be followed in that regard. As a term
of the contract between the parties, however, a contractual forum
selection clause is documentary evidence
(see Trataros Constr., Inc. v New York City Hous. Auth., 34 AD3d 451, 452; Holiday Mgt. Assoc. v New York Inst. of Tech., 149 AD2d 462, 465; Siegel, NY Prac § 259 [4th ed]; see also 150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1) that may provide a proper basis for dismissal pursuant to CPLR 3211(a)(1) (see Boss v American Express Fin. Advisors, Inc., 6 NY3d 242).

Since the Supreme Court was not without subject matter
jurisdiction of the action by virtue of the enforcement of the
contractual forum selection clause, it was not foreclosed from
considering the availability, upon dismissing the complaint, of
granting relief to the plaintiff pursuant to CPLR 327. Nevertheless, we
affirm the Supreme Court's denial of the plaintiff's request for such
relief, on a different ground

CPLR 327 articulates the common-law doctrine of forum non conveniens (see Islamic [*5]Republic of Iran v Pahlavi, 62 NY2d 474, 478, cert denied 469
US 1108; Alexander, Practice Commentaries, McKinneys Cons Laws of NY,
Book 7B, C327:1 [2001 ed]). It permits a court, in its discretion, to
impose "any conditions that may be just" when dismissing an action on
the ground that "in the interest of substantial justice the action
should be heard in another forum" (CPLR 327; see Demenus v Sylvester, 146 AD2d 668).

Here, however, the dismissal is not discretionary, but is the
necessary consequence of enforcing the contract between the parties. As
a result, considerations such as the impact of the dismissal on the
plaintiff and whether fatality to the plaintiff's claims can be
avoided, which are legitimate in applying CPLR 327
(see Singh v Zuidema, 221 AD2d 1020; Crown Cork & Seal Co. v Rheem Mfg. Co., 64 AD2d 545), where the court is balancing interests (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Chawafaty v Chase Manhattan Bank, N.A., 288
AD2d 58), are irrelevant. Rather, in this regard, the dismissal is
analogous to a dismissal based upon lack of personal jurisdiction,
where those considerations play no role
(see Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574, 579; Sanchez v Major, 289 AD2d 320, 321; Sarfaty v Rainbow Helicopters, Inc., 221 AD2d 618, 619; Foley v Roche, 68 AD2d 558, 565).

Thus, contrary to the plaintiff's argument, even though the
Supreme Court had jurisdiction of the matter despite the forum
selection clause, it had no authority to grant discretionary relief to
the plaintiff pursuant to CPLR 327 once it determined that the contract
required that the complaint be dismissed
. We therefore affirm the order
of the Supreme Court.