40 N.Y.2d 633 (1976)
When a motion to dismiss for lack of personal jurisdiction is made after the answer has been filed, the motion must be treated as one for summary judgment, and the court must give the parties notice that it will be so treated.
Summary
This case addresses the proper procedure for a defendant who wishes to challenge personal jurisdiction after filing an answer. The defendant, a physician, argued improper service in a malpractice and product liability suit. Although the defendant raised the jurisdictional defense in his answer, he later moved to dismiss based on CPLR 3211(a)(8). The Court of Appeals held that such a motion, made after the answer, must be treated as a motion for summary judgment under CPLR 3212. Further, the court must provide notice to the parties that the motion will be treated as a summary judgment motion. Because the plaintiff did not receive such notice, the case was remitted for reconsideration.
Facts
The plaintiff sued the defendant physician for malpractice and the drug manufacturer for product liability. Service on the physician was attempted via CPLR 308(4), by affixing the summons and complaint to his office door and mailing a copy to his “last known residence.” The defendant argued that the mailed copy was sent to the same address as the “nailed” copy, which was not his residence, and that due diligence was not demonstrated before resorting to substituted service.
Procedural History
The defendant stipulated to extend the time to answer, then included a jurisdictional defense in his answer. Nearly two years later, the defendant moved to dismiss under CPLR 3211(a). The plaintiff argued the defendant waived the jurisdictional defense. The lower courts ruled in favor of the defendant. The plaintiff appealed to the Court of Appeals.
Issue(s)
Whether a motion to dismiss for lack of personal jurisdiction, made after the answer has been filed, should be treated as a motion for summary judgment; and, if so, whether the court must provide notice to the parties that it will be so treated.
Holding
Yes, because CPLR 3211(c) requires that when a motion to dismiss is made after the answer, the court must give adequate notice to the parties that the motion will be treated as one for summary judgment.
Court’s Reasoning
The Court reasoned that while CPLR 3211(e) does not explicitly prohibit a motion to dismiss after an answer, CPLR 3212(c) implies that such a motion should be treated as a motion for summary judgment. The court emphasized that under CPLR 3211, a plaintiff is not obligated to submit affidavits on penalty of dismissal, as is the case under CPLR 3212. Quoting from the decision, “CPLR 3211 allows plaintiff to submit affidavits, but it does not oblige him to do so on penalty of dismissal, as is the case under CPLR 3212”.
The court noted that the Judicial Conference recommended the 1973 amendment to CPLR 3211(c) requiring notice to ensure an appropriate record and submission of facts by the parties. The court held that requiring a motion challenging personal jurisdiction after an answer to be made under CPLR 3212 (or with notice of conversion from 3211 to 3212) reduces potential gamesmanship and allows efficient resolution through immediate trial of factual issues. While a more definite statement of defense could have been requested, CPLR 3013 intended to move pleadings away from rigid formalism. The court found the lower court erred by not giving the plaintiff notice that it would treat the motion to dismiss as one for summary judgment.