Senate Bill S2042

                                 BILL NUMBER:  S2042

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

 PURPOSE :
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, 2008 NY Slip Op. 218, 2008
NY App. Div.  Lexis 176 (2nd Dept. 2008).

 SUMMARY OF PROVISIONS :
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 plaintiff's
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, res judicata, 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 a recent decision of Charles v. Long Island College Hospital, 2008
NY Slip Op. 2008 NY App. Div. Lexis 176 (2nd Dept. 2008) the Appellate
Division 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 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
amendment together with the commencement by filing system (and the
attendant one hundred twenty day service period) has, in essence,
eliminated the statute of limitation issue that, for the most part,
precipitated the assertion of the defense.

The decision in Charles, however, will necessarily force defendants'
counsel to contest every possible service issue. The proposed
legislation will 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 :
2007-08 - S.7998/A.10819

 FISCAL IMPLICATIONS :
None.

 LOCAL FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
Immediately.