Homburger v. Levitin, 62 N.Y.2d 684 (1984)
r
A defendant waives the defense of lack of personal jurisdiction if they make a pre-answer motion to dismiss on other grounds under CPLR 3211(a) without raising the jurisdictional objection.
r
Summary
r
This case addresses the issue of waiver of personal jurisdiction defense under New York’s CPLR 3211(e). Homburger sued Levitin for specific performance of a real estate contract. Before answering, Levitin moved to dismiss for failure to state a cause of action. Subsequently, Homburger amended the complaint, and Levitin, in their answer to the amended complaint, raised the defense of lack of personal jurisdiction. The Court of Appeals held that Levitin waived the jurisdictional defense by failing to raise it in their initial pre-answer motion to dismiss, despite the complaint having been amended as of right. This decision underscores the importance of consolidating all defenses, including jurisdictional ones, in the initial pre-answer motion.
r
Facts
r
Homburger commenced an action against Levitin for specific performance of a real estate contract by serving a summons and complaint.
r
Before answering the original complaint, Levitin moved to dismiss the complaint under CPLR 3211(a)(7) for failure to state a cause of action.
r
Within 20 days of service of the original complaint, Homburger served Levitin with an amended complaint as of right under CPLR 3025(a).
r
In their answer to the amended complaint, Levitin asserted the affirmative defense that the court lacked personal jurisdiction over them under CPLR 3211(a)(8), alleging improper service of the summons and the original complaint.
r
Procedural History
r
The Supreme Court granted Homburger’s motion for summary judgment, holding that Levitin had waived the defense of lack of personal jurisdiction under CPLR 3211(e) by not raising it in the initial CPLR 3211 motion.
r
The Appellate Division unanimously affirmed the Supreme Court’s decision.
r
The case was appealed to the New York Court of Appeals.
r
Issue(s)
r
Whether a defendant waives the defense of lack of personal jurisdiction under CPLR 3211(e) by making a pre-answer motion to dismiss on other grounds without raising the jurisdictional objection, even if the complaint is subsequently amended as of right and the jurisdictional defense is raised in the answer to the amended complaint.
r
Holding
r
Yes, because CPLR 3211(e) states that the defense of lack of personal jurisdiction