Crook v. E.I. du Pont de Nemours Co.

• Decision Date: 13 March 1992
• Docket Number: No. 2,2
• Citation: 181 A.D.2d 1039,582 N.Y.S.2d 581
• Parties: Cheryl CROOK and Daniel Crook, Respondents v. E.I. du PONT de NEMOURS COMPANY, et al., Defendants, National Chemsearch, Division of N.C.H. Corp., Hotsy Corporation, Chemical Division, and Hotsy of Central New York, Appellants. Appeal
• Court: New York Supreme Court — Appellate Division

Page 581

582 N.Y.S.2d 581

181 A.D.2d 1039

Cheryl CROOK and Daniel Crook, Respondents v. E.I. du PONT de NEMOURS COMPANY, et al., Defendants National Chemsearch, Division of N.C.H. Corp., Hotsy Corporation, Chemical Division, and Hotsy of Central New York, Appellants. Appeal No. 2.

Supreme Court, Appellate Division Fourth Department.

March 13, 1992.

Falk & Siemer by J. Joseph Wilder, Buffalo, for appellants, Hotsy Corp. and Hotsy of Central New York.

Saperston & Day, P.C. by Catherine Habermehl, Buffalo, for appellant, National Chemsearch, Division of N.C.H. Corp. Andrew F. Plasse, Fayetteville, for respondents.

Before CALLAHAN, J.P., and BOOMER, BALIO, LAWTON and DAVIS, JJ.

MEMORANDUM:

Supreme Court erred in finding that, since defendants Hotsy Corporation (Hotsy) and National Chemsearch (Chemsearch) made a CPLR 3211(a) motion that did not challenge jurisdiction, they waived that defense even though it was contained in their answers. CPLR 3211(e) permits a defendant to interpose an objection to personal jurisdiction either by making a motion to dismiss or by raising it as a defense in the answer (see, Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C3211:59, at 81). This motion was made after issue was joined, and defendants Hotsy and Chemsearch properly preserved their affirmative defense of lack of jurisdiction in their answers to plaintiffs' complaint. The court properly granted plaintiffs' motion to strike the affirmative defense of defendant Hotsy of Central New York, as that defendant agreed to waive the defense of lack of personal jurisdiction in return for a general extension of time to answer the complaint (see, Schottin v. Haque, 179 A.D.2d 1049, 579 N.Y.S.2d 282 (1992)).

It is apparent, however, from our review of this record, that plaintiff failed to obtain leave pursuant to CPLR 3025(b) and 1003 to serve an "amended summons and complaint" purporting to join Hotsy and Chemsearch as party defendants. Since there has been no waiver by them, the failure to obtain leave of court constitutes a jurisdictional defect requiring dismissal of the action against Hotsy and Chemsearch (see, Yonker v. Amol Motorcycles, 161 A.D.2d 638, 555 N.Y.S.2d 416). Since that issue involves only a question of law, we can reach the merits even though the Hotsy motion was made pursuant to CPLR 3211 (see, O'Hara v. Del Bello, 47 N.Y.2d 363, 366, 418 N.Y.S.2d 334, 391 N.E.2d 1311, rearg. denied 48 N.Y.2d 656, 421 N.Y.S.2d 1032,...