TITLE OF BILL:
to amend the civil practice law and rules, in relation to assertable
defenses of a third-party defendant
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
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 32l1(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 32l1(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.
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 32Il(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.
2009-10 - S.2042
2007-08 - S.7998/A.10819