Motion to Dismiss for Failure to State a Cause of Action in New York
In Addesso v. Shemtob, 70 N.Y.2d 689, 512 N.E.2d 314, 518 N.Y.S.2d 793 (1987), an action for specific performance for the sale of real property, the defendants first moved to dismiss the action based on plaintiff's failure to state a cause of action.
Following the plaintiff's amended complaint, the defendants then asserted in their answer to the amended complaint the affirmative defense of lack of personal jurisdiction pursuant to CPLR 3211(a)(8).
However, the Supreme Court held, as was affirmed by the New York Court of Appeals, that under CPLR 3211(e) the defendants waived such defense because they had not raised it in their earlier CPLR 3211 motion to dismiss the action.
"The defense of lack of personal jurisdiction is waived if not raised within sixty days of the time of the first answer to the summons and complaint and also is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection,'" and "there is no reason to depart from the statute's plain language." Id. at 794.