He-Duan Zheng v American Friends of the Mar Thoma Syrian Church of Malabar, Inc.

[*1] He-Duan Zheng v American Friends of the Mar Thoma Syrian Church of Malabar, Inc. 2008 NY Slip Op 52735(U) Decided on October 22, 2008 Supreme Court, Kings County Saitta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 22, 2008
Supreme Court, Kings County

He-Duan Zheng, Plaintiff,

against

The American Friends of the Mar Thoma Syrian Church of Malabar, Inc., Solution Contracting Inc., and Mar Thoma Church, Defendants.



33329/2005



Plaintiff Attorney -

Avelino & Associates, P.C.

225 Broadway, 25th Floor

New York, New York 10007

(212) 732-9500

Larry Stoddard, Esq.

Defendants Attorney -

Natiss & Gordon

277 Willis Avenue

Roselyn Heights, New York

(516) 621-0900

Shalom A. Schwartz, Esq.

Wayne P. Saitta, J.

Defendant, MAR THOMA CHURCH, (hereinafter "Defendant" or "MAR THOMA"), moves this court for an Order pursuant to CPLR § 3211 for Summary Judgment dismissing the complaint against it. Plaintiff cross moves to strike Mar Thoma's fourth affirmative defense or alternatively for leave to file an amended complaint.

Upon reading the Notice of Motion of Shalom A. Schwartz, Esq., attorney for Defendant, [*2]MAR THOMA CHURCH, dated February 12th, 2008, together with the Affidavit in Support of Shalom A. Schwartz, dated February 12th, 2008, and all exhibits annexed thereto; Notice of Cross-Motion by Larry Stoddard III, Esq., attorney for Plaintiff, HE-DUAN ZHENG, dated May 20th, 2008, together with the Affirmation in Opposition and in Support of Cross Motion of Larry Stoddard III, dated May 20th, 2008, and all exhibits annexed thereto; the Affidavit in Reply to Main Motion and in Opposition to Cross-Motion of Shalom A. Schwartz, dated June 4th, 2008; the Reply Affirmation of Larry Stoddard III, dated June 11th, 2008; the Affidavit in Further Reply to Main Motion and Further Opposition to Cross-Motion by Shalom A. Schwartz, dated July, 15th, 2008, together with the Affidavit in Further Reply to Main Motion and In Further Opposition to Cross-Motion of Abraham Mathew, dated July 14th, 2008, together with all exhibits annexed thereto; the Sur-Reply Affirmation by Larry Stoddard III, Esq., dated July 16th, 2008; and after argument of counsel and due deliberation thereon, Defendant's motion for Summary Judgment is denied for the reasons set forth below and Plaintiff's cross motion is denied as moot.

FACTS

The underlying action is for personal injuries which Plaintiff alleges were sustained while he was engaged in construction work upon the premises located at 134 Faber Street, Staten Island.

Plaintiff filed a summons and complaint on October 28th, 2005, against The American Friends of the Mar Thoma Syrian Church of Malabar, Inc., (hereinafter "American Friends"), and Solution Contracting Inc.

On June 14th, 2007, Plaintiff served an amended complaint naming Mar Thoma Church as an additional defendant. Plaintiff did not seek permission of the Court to serve the amended complaint. In response, Mar Thoma filed an answer on December 11th, 2007, in which it alleged Plaintiff lacked jurisdiction over it stating "Plaintiff lacks jurisdiction over the defendant, Mar Thoma Church, by reason of the manner in which the summons was served". It did not raise as a jurisdictional defense that Plaintiff failed to properly obtain leave to add it as a party in the amended complaint.

On February 12th, 2008, Mar Thoma moved to dismiss the amended complaint pursuant to CPLR §3211(a)(8) and CPLR §1003.

The three year statute of limitations for a labor law claim expired on December 21st, 2007.

ARGUMENTS

Defendant Mar Thoma argues it is entitled to an order dismissing Plaintiff's complaint because Plaintiff's failure to obtain leave of the Court or consent of the parties to add the Defendant renders the amended summons and complaint a legal nullity.

Plaintiff cross moves to strike Mar Thoma's fourth affirmative defense of lack of personal jurisdiction over Mar Thoma or alternatively to grant Plaintiff leave to substitute Mar Thoma in for American Friends. Plaintiff argues that Mar Thoma waived the jurisdictional defense by not moving to dismiss on that ground within 60 days after serving its answer.

In the alternative, Plaintiff argues it should be permitted to substitute Mar Thoma in for American Friends as Mar Thoma was apprised that it was the intended party to be served and because it was, in fact, served with a summons and complaint.

In response, Mar Thoma further argues that in fact it would be prejudiced by Plaintiff [*3]substituting Mar Thoma for American Friends as the entities are unrelated and the substitution would violate the three year statute of limitations.

ANALYSIS

Two distinct personal jurisdictional defenses pursuant to CPLR 3211(a)(8) are at play in this matter. Defendant raised in their answer the failure to properly serve the summons. In this motion it raises the failure to obtain personal jurisdiction over Mar Thoma by obtaining leave to amend the complaint to join them as a defendant.

In its answer of December 11th, 2007, Defendant Mar Thoma asserted that service was defective, stating, "Plaintiff lacks jurisdiction over the defendant, Mar Thoma Church, by reason of the manner in which the summons was served". Defendant stated nothing about improper joinder in its answer to the amended complaint. However, Mar Thoma has waived this objection to the manner of service, by failing to move to dismiss on that ground within 60 days. CPLR 3211(e). This motion to dismiss does not raise improper manner of service, and in any event it was filed more than 60 days after Mar Thoma served its answer.

It is uncontested both that Plaintiff did not amend the pleadings as of right, within twenty days of the original summons and complaint or responsive pleading , and that Plaintiff did not obtain leave of the court to add Mar Thoma as an additional party.

Accordingly, the issue is whether Mar Thoma is now entitled to move to dismiss, based on improper joinder, even though it failed to raise it as a defense in its answer.

"Generally, unless there has been a waiver, the failure to obtain leave of the court constitutes a jurisdictional defect requiring dismissal of the action against the party so joined." Moses v. City of New York, 18 Misc 3d 1113(a), 856 N.Y.S.2d 499, 2008 WL 89661, citing Crair v Brookdale Hosp. Med. Ctr., 259 AD2d 586, 589 [2d Dept 1999]; see also Dauernheim v Lendlease Cars, Inc., 202 AD2d at 625 ["[j]oinder of a new party defendant without court approval is a nullity unless waived by the new party."].)

The Court in Moses v. City of New York, 18 Misc 3d 1113(a), 856 N.Y.S.2d 499, 2008 WL 89661 quoted the Court of Appeals in Perez v. Paramount Communications, Inc., 92 NY2d 749, 686 N.Y.S.2d 342 (1999), holding the "[j]oinder of an additional defendant by the filing of a supplemental summons and amended complaint may be accomplished only with prior judicial permission, and non compliance renders the pleadings jurisdictionally defective".

"Although a court order is required to add a new party to an action, and the failure to obtain such generally renders service on the new party a nullity, nevertheless, a failure to obtain leave of court may be waived and is not fatal in all cases [citations omitted]." Moses v. City of New York, 18 Misc 3d 1113(a), 856 N.Y.S.2d 499, 2008 WL 89661, citing Santopolo v Turner Construction Co., 181 AD2d 429, 429 [1st Dept 1992]; Gross v BFH Co., Inc., 151 AD2d 452, 452 [2d Dept 1989].) "A defendant waives the jurisdictional defect' of improper joinder where the defendant answers the amended complaint without raising an objection to the improper joinder, and then delays until after the limitations period has run before moving to dismiss." Moses v. City of New York, 18 Misc 3d 1113(a), 856 N.Y.S.2d 499, 2008 WL 89661, (See Tarallo v [*4]Gottesman, 204 AD2d 303, 303 [2d Dept 1994]; Santopolo v Turner Construction Co., 181 AD2d at 429; Gross v BFH Co., Inc., 151 AD2d at 452; McDaniel v Clarkstown Central District No. 1, 83 AD2d 624, 625 [2d Dept 1981]; compare Public Administrator of Kings County v McBride, 15 AD3d 558, 559 [2d Dept 2005]. "Conversely, a defendant does not waive the jurisdictional defect' of improper joinder where it asserts the improper commencement of the action as an affirmative defense in its answer, even though the defendant thereafter participates in disclosure." Moses v. City of New York, 18 Misc 3d 1113(a), 856 N.Y.S.2d 499, 2008 WL 89661.

Additionally, CPLR section 3211(e) governs the time in which motions based on the various subdivisions of 3211(a) must be made.

An objection made pursuant to subdivision 8 of section 3211(a) "is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he or she does not raise such objection in the responsive pleading". CPLR 3211(e).

In other words an objection to personal jurisdiction is waived if a defendant makes a pre-answer motion to dismiss but doesn't raise the objection in that motion. Also, any objection to personal jurisdiction is waived if a defendant answers, having not made a motion to dismiss, and does not include the objection in the answer.

Here Mar Thoma Church appeared in the matter by filing an answer in which it raised a defense of improper service of the summons, an affirmative defense which is distinct from that of failing to obtain leave of the court to amend the complaint. By failing to raise the separate and distinct defense of improper joinder in its answer it waived the defense.

After answering, Mar Thoma attended a preliminary conference and signed an order agreeing to a preliminary discovery schedule. Only once the statute of limitations has run did it move to dismiss the action.

By actively participating in discovery and waiting until the statute of limitations had run to object to improper joinder, it effectively denied Plaintiff the opportunity to remedy the objection and seek leave from the Court to properly obtain jurisdiction against Mar Thoma.

Although Plaintiff failed to seek leave to properly amend the complaint, the burden properly lay with Defendant to timely raise any objection to personal jurisdiction. By not objecting to joinder in its answer and waiting until after the statute of limitations had run, Defendant has waived any objection to improper joinder.

As Defendant's motion to dismiss the complaint must be denied, Plaintiff's cross motion for leave to amend the complaint to substitute Mar Thoma in for The American Friends of the Mar Thoma Syrian Church is moot. As discussed above, Plaintiff's cross motion to strike Mar Thoma's fourth affirmative defense of improper service should be granted because Mar Thoma waived that objection by failing to move to dismiss on that ground within 60 days of serving its answer.

WHEREFORE, Defendant Mar Thoma's motion to dismiss is denied; that part of [*5]Plaintiff's cross motion to strike Mar thoma's fourth affirmative defense is granted and that part of the cross motion seeking leave to serve an amended complaint is denied as moot.

This shall constitute the decision and order of this Court.

E N T E R,

_______________________

J. S. C.