Provides that certain defenses relating to proper service on a third-party plaintiff by a plaintiff may not be asserted in the answer of a third-party defendant

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 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.

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 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.

Legislative history

2009-10 - S.2042 2007-08 - S.7998/A.10819

Fiscal implications

None.

Effective date

Immediately.