Iacovangelo v. Shepherd

• Decision Date: 30 June 2005
• Citation: 833 N.E.2d 259,5 N.Y.3d 184
• Parties: Frank B. IACOVANGELO, as Administrator of the Estate of Goldie Gilchrist, Also Known as Goldy Bond, Deceased, Appellant, v. David SHEPHERD et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 259

833 N.E.2d 259

5 N.Y.3d 184

Frank B. IACOVANGELO, as Administrator of the Estate of Goldie Gilchrist, Also Known as Goldy Bond, Deceased, Appellant, v. David SHEPHERD et al., Respondents.

Court of Appeals of New York.

June 30, 2005.

Gallo & Iacovangelo, LLP, Rochester (Joseph B. Rizzo of counsel), for appellant.

Bivona & Cohen, P.C., New York City (Michael P. Lagnado, Harold J. Derschowitz and Ian H. Kaufman of counsel), for respondents.

OPINION OF THE COURT

R.S. SMITH, J.

We hold that a defendant who omits from an answer a defense based on lack of personal jurisdiction has not waived the defense if the defendant corrects the omission before the time to amend the answer without leave of court has expired.

Facts and Procedural History

Goldie Gilchrist, a New York resident, was walking on a highway in Georgia when she was hit by a truck owned by David Shepherd and driven by Thomas Rouse. Shepherd and Rouse are residents of Georgia. Gilchrist died several months later, and her administrator sued Shepherd and Rouse in New York, alleging that both of them negligently injured Gilchrist and caused her death, and also that Shepherd was vicariously liable for Rouse's negligence.

On November 8, 2002, defendants served an answer to the complaint that did not challenge the court's jurisdiction over them. Plaintiff served an amended complaint dated November 14, 2002. On November 21, 2002, 13 days after serving the original answer, defendants served a "Verified Amended Answer" alleging that "the Court lacks jurisdiction over the persons of the answering defendants."

Defendants moved to dismiss the action for lack of personal jurisdiction. Plaintiff, opposing the motion, argued that defendants had waived this defense by failing to assert it in their original answer. Supreme Court granted the motion, holding that "the defendants did not waive their jurisdictional defense." The Appellate Division affirmed, as do we.

Discussion

CPLR 3211(a)(8) permits a defendant to move to dismiss a complaint on the ground that "the court has not jurisdiction of the person of the defendant." CPLR 3211(e) provides in relevant part:

"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."

In Addesso v. Shemtob, 70 N.Y.2d 689, 518 N.Y.S.2d 793, 512 N.E.2d 314 [1987], we applied CPLR 3211(e) in a case where defendants had moved to dismiss the complaint without raising a jurisdictional defense in the motion. We found "no reason to depart from the statute's plain language" (id. at 690, 518 N.Y.S.2d 793, 512 N.E.2d 314), and held that the defense was waived. Here, we face an issue on which CPLR 3211(e) is not explicit: whether a waiver occurs when a party does not raise the defense in his or her first "responsive pleading," but does raise it in a pleading permitted by CPLR 3025(a), which says that "[a] party may amend his pleading once without leave of court within twenty days after its service. . . ."^*

This issue was decided by Supreme Court in Solarino v. Noble, 55 Misc.2d 429, 286 N.Y.S.2d 71 [Sup.Ct., N.Y. County 1967, Spiegel, J.], a case in which a defendant amended his answer two days after serving it to add a defense of lack of personal jurisdiction. The court held the defense was not waived. Justice Spiegel referred to "`the general rule that an amendment relates back to the service of the original pleading'" (id. at 430, 286 N.Y.S.2d 71, quoting Blatz v. Benschine, 53 Misc.2d 352, 354, 278 N.Y.S.2d 533 [Sup.Ct., Queens County 1967]), to the absence of prejudice to the plaintiff, and to "the general principle that cases should be determined on the merits, rather than on the basis of the procedures followed" (id.). Several Appellate Division decisions also support the idea that a pleading amended as of right "relates back to and speaks as of the time of the filing of" the original pleading (Abrams v. Community Servs., Inc., 76 A.D.2d 765, 766, 429 N.Y.S.2d 10 [1st Dept.1980]; see also Naccarato v. Kot, 124 A.D.2d 365, 365, 507 N.Y.S.2d 308 [3d Dept.1986, Levine, J.] [distinguishing Solarino where the amendment is not "taken as of right" but is by leave of court]; Boulay v. Olympic Flame, Inc., 165 A.D.2d 191, 565 N.Y.S.2d 905 [3d Dept.1991] [same]).

In DeFilippis v. Perez, 148 A.D.2d 490, 491, 539 N.Y.S.2d 22 [2d Dept.1989], the Appellate Division referred to Solarino and similar decisions as "cases decided prior to the Addesso . . . decision" and reversed a ruling that it said "erroneously" relied on them. These comments were not necessary to the decision in DeFilippis — a case essentially identical to Addesso — and we think that, as Professor Siegel has suggested, the DeFilippis court erred in implying that Solarino and Addesso were inconsistent (see, Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3211:62). Addesso involved waiver by omission of a defense from a motion, not from an answer, and the two are not the same. There is no statutory right to amend a motion that is comparable to the right to amend an answer afforded by CPLR 3025(a).

We agree with the Solarino court that permitting a defendant to add a jurisdictional defense to an answer by an amendment as of right is consistent with CPLR 3211(e), and advances the purpose of CPLR 3025(a). CPLR 3025(a) gives a party 20 days after serving a pleading to correct it or improve upon it, and the addition of a...