56 N.Y.2d 276 | NY | 1982
OPINION OF THE COURT
Defendant’s defense that improper substituted service deprived the court of jurisdiction over his person was not waived by the form of the affirmative defense. Nor was defendant’s right to move to dismiss the complaint for lack of jurisdiction waived by a stipulation which extended defendant’s time to answer but made no reference to his right to move with respect to the complaint. However, defendant’s motion to dismiss pursuant to CPLR 3211 (subd [a], par 8), made after answer, should have been treated as a motion for summary judgment, and pursuant to CPLR 3211 (subd [c]) plaintiff should have been given
The action is one for malpractice against a physician and in product liability against the manufacturer of the drug prescribed by the physician. Only the physician is involved in this appeal. Service upon him was purportedly made pursuant to CPLR 308 (subd 4) after due diligence in attempting to serve him personally, by affixing the summons and complaint to the door of his office and mailing a copy of each to him at “his last known residence.” The flaws in service raised by defendant’s motion arise from the fact that the mailed copy was sent to the same address to which the “nailed” copy was affixed which, it is alleged, is not and never has been the physician’s residence, and from the contention that due diligence was not demonstrated. These deficiencies were brought to the court’s attention not by motion prior to answer addressed to the complaint, as CPLR 3211 (subd [a], par 8) authorizes, but by affirmative defense asserted in the answer, after a stipulation extending defendant’s time “to appear and answer.” The defense asserted was that “The court does not have jurisdiction of the person of defendant because defendant was not personally served with a copy of the summons and complaint.” Though the answer was served on May 3, 1978, it was not until February, 1980 that, by motion returnable March 14, 1980 and stating that it was made pursuant to CPLR 3211 (subd [a]), defendant moved to dismiss. By that time plaintiff had noticed defendant for examination before trial, the examination had several times been adjourned and plaintiff’s time to begin an action by proper service had expired. Plaintiff argues, therefore, that defendant is in any event estopped from pressing his defense of absence of jurisdiction.
Plaintiff’s waiver arguments do not withstand analysis. The stipulation extending defendant’s time to answer
Nor did the form of the affirmative defense constitute a forfeiture of the right to assert it. Plaintiff’s contention that it did is predicated on Walden v Thagard (67 AD2d 973). Walden held a defense of lack of jurisdiction “‘by reason of failure to serve summons on [defendant] in accordance with the provisions of statute ’ ” to be a waiver because it did not fairly apprise plaintiff of the actual objection, which was that the order of attachment was served after rather than before the summons and complaint was served outside the State (cf. CPLR 314, subd 3). It reached that conclusion in reliance upon the requirement of CPLR 3018 that “matters which if not pleaded would be likely to take the adverse party by surprise” be pleaded as affirmative defenses. CPLR 3018 goes to the subject matter of the defense (lack of personal jurisdiction) rather than to the particularity with which the defense is pleaded. The form as distinct from the subject of a responsive pleading is governed by CPLR 3013.
The latter provision, so far as pertinent, requires only sufficient particularity “to give the court and the parties notice of * * * the material elements of each * * * defense.” Although the defense would more clearly have alerted plaintiff to the defect relied upon had it added the words “and substituted service was not properly effected,” the absence of those words should not, for several reasons, be held to forfeit the defense. First, because service may be made either personally or by substituted service, a defense
It was, however, error to consider the motion, made under CPLR 3211 long after joinder of issue, without giving “adequate notice to the parties” as required by subdivision (c) of that section, that the motion would be treated as one for summary judgment. True, there is no specific language in CPLR 3211 (subd [e]) that proscribes a motion such as the present one after answer provided only that no prior 3211 motion has been made, and both CPLR 3211 and 3212 contain provisions authorizing denial, continuance or disclosure if it appears that facts are unavailable to the opposing party (CPLR 3211, subd [d]; 3212, subd [f]) and authorizing immediate trial of issues of fact raised on the motion (CPLR 3211, subd [c]; 3212, subd [c]).
In view of the conclusion reached, we need not consider the questions concerning what defendant’s “last known residence” was, whether the process server acted with due diligence before attempting substituted service (on which the courts below made no findings), or plaintiff’s estoppel argument.
For the foregoing reasons, the order of the Appellate Division should be reversed and the case remitted to Supreme Court, New York County, for further proceedings in accordance with this opinion.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.
Order reversed, etc.