Assembly Bill A10151

                                BILL NUMBER:A10151

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to assertable defenses of a third-party defendant

PURPOSE OF BILL:  The purpose of this bill is to prohibit a
third-party defendant from asserting an objection or defense that the
summons and complaint, summons with notice or notice of petition and
petition was not properly served and, thus, to expressly overrule the
recent decision in Charles v. Long Island College Hospital, 47 A.D.3d
665, 850 N.Y.S.2d 173 (2nd Dept. 2008).

SUMMARY OF PROVISIONS OF BILL:  This bill prohibits the assertion by a
third party defendant of a service objection relating to the
initiating pleadings in the main action.

EXISTING LAW:  In the answer a third-party defendant may, of course,
assert any defense he or she may have against the
defendant/third-party plaintiff. In addition, CPLR 1008, as currently
drafted, permits a third-party defendant to assert "against the
plaintiff in his answer any defenses which the third-party plaintiff
has to the plaintiffs claim." This has been interpreted to include the
defenses/objections referred to in CPLR 3018(b) and 3211(a), including
the defense that the original initiating pleadings were not properly
served.

              

Traditionally, these objections/defenses are asserted (1) via a
pre-answer motion to dismiss under CPLR 3211, or (2) in the
defendant's responsive pleading, typically the answer. In addition
CPLR 3211(c) provides that certain defenses are waived if not asserted
in the pre-answer motion or in a responsive pleading (e.g.  the
traditional affirmative defenses such as statute of limitations,
statute of frauds, resjudicata, payment, release and personal
jurisdiction defenses). In the case of personal jurisdiction, the
statute is even more stringent, requiring that such objections be made
in a pre-answer motion to dismiss brought on any other grounds.
Finally, CPLR 3211(c) was amended in 1996 to provide that where there
is an objection to the service of the initiating pleadings, it must be
resolved in a pre-answer motion or within sixty days after the
pleading (answer) containing the service defense.

JUSTIFICATION:  In the recent decision of Charles v. Long Island
College Hospital, supra, the Appellate Division, Second Department
granted the third-party defendant's motion to dismiss the third-party
complaint based on the plaintiffs failure to properly serve the
defendant/third-party plaintiff with the summons and complaint. The
practical consequence of this decision is to require defendants to
contest service in each and every case, or risk the possibility that
such a defense - no matter how wasteful or inefficient to assert at
that time will be used later by a third-party defendant as a defense
or objection, resulting in the dismissal of the third-party action.

This is contrary to the current practice which discourages service
objections where there are no statute of limitations implications or
where "proper" service can be easily effected. In fact, many counsel
for defendants have refused to assert such objections because of their
cost and lack of utility, and the judiciary often is loath to


entertain such motions. Moreover, the 1996 amendments to CPLR 3211(e)
recognized the peculiar nature of this service issue and the intent to
resolve them early on in the litigation. That amendment eliminated
late in the litigation objections to service and required them to be
made in a pre-answer motion to dismiss or within sixty days after
serving the pleading containing the defense/objection. The sponsors'
memorandum clearly noted that: "In many instances service objections
are interposed as part of 'boiler plate' answers or motions are (sic)
made primarily for the purpose of delaying prosecution of the
action... the purpose of this provision is to require a party with a
genuine objection to service to deal with the issue promptly and at
the outset of the action. The provision will ferret out unjustified
objections and will provide for prompt resolution of those that have
merit".

The decision in Charles will necessarily force defendants' counsel to
contest every possible service issue. However, this is consistent with
our prior legislation which required a defendant to so contest or have
the defense deemed waived. The proposed legislation will simply remove
the service objection with respect to the initiating pleadings in the
main action from those objections a third-party defendant may assert.

LEGISLATIVE HISTORY:  2009: A.4584 (Weprin) / S.2042 - PA/S.Codes
2007-2008: A.10819 (Weprin)/S.7998 - PA/S.Rules

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  None.

EFFECTIVE DATE: Immediately.