Defendants Beware: Second Department Strictly Interprets Necessity to Plead Lack of Personal Jurisdiction As First Move.

Before a case can reach the merits, which refers generally to the facts, it must be established that the court in which the proceeding is brought has both personal jurisdiction over the defendant, which generally means the court can render an order against defendant that is enforceable based upon residency, and subject matter jurisdiction, which means the court has been vested with the power to preside over the particular matter of the case.  If a court is missing either or both, the defendant can raise that issue in either an answer, or in a re-answer motion to dismiss the action pursuant to subsections (2) and (8) of the Civil Practice Law and Rules (CPLR) §3211(a).

It is well known amongst practitioners in New York State that while lack of subject matter jurisdiction is a defense that can validly be raised at any time during the proceedings (CPLR §3211(a)(2)), lack of personal jurisdiction is defense that must be plead as defendant’s first move, whether it be a pre-answer motion to dismiss, or in the defendant’s answer, whichever comes first. (CPLR 3211(a)(8)). A failure to raise lack of personal jurisdiction in the defendant’s first move results in a waiver of same, which can be crucial to defendant’s strategy.

This strict standard was further narrowed in J.P. Morgan Chase Bank, N.A. v. Jacobowitz. A foreclosure action was commenced by J.P. Morgan Chase Bank, and a process server attested that on November 16, 2013, he served the summons and complaint on defendants by delivering copies to a person of suitable age and discretion at the subject property, and subsequently mailing the papers to the same address, pursuant to CPLR §308(e).

On February 25, 2015, defendant’s council filed a notice of appearance with the court containing the language: “[t]he Defendants do not waive any jurisdictional defenses by reason of the within appearance.”

The defendants did nothing further to participate in the proceedings, no answer or motions were filed, and they even failed to object to Plaintiff’s motion for an order of reference, which was ultimately granted on June 1, 2015.  Finally, defendants moved to vacate the June 1 order pursuant to §5015(a)(4) “lack of jurisdiction to render the judgment or order,” alleging defective service.

The court held that the statement in defendants’ notice of appearance was inconsequential under the circumstances, for they waited more than 10 months after the filing to move to dismiss the complaint on grounds of lack of personal jurisdiction. At that remote time, the court held that “the defendants waived any claim that the Supreme Court lacked personal jurisdiction over them in this action.”

Case law and the CPLR has made it clear that a lack of personal jurisdiction defense must be affirmatively raised immediately, or it is waived. Practitioners would be wise to make a motion on the defense at the action’s inception, rather than holding onto it for potential future use.

J.P. Morgan Chase Bank, N.A. v. Jacobwitz, Slip Op 07773 (2nd Dep’t 2019).

http://nycourts.gov/reporter/3dseries/2019/2019_07773.htm