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THE DEFENDANTS DID NOT RAISE A DEFECT IN SERVICE AS AN AFFIRMATIVE DEFENSE; THE JUDGE SHOULD NOT HAVE RAISED THE ISSUE SUA SPONTE AND DISMISSED THE PROCEEDING ON THAT GROUND (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, raised the propriety of service issue and dismissed the proceeding on that ground:

The Supreme Court should not have, sua sponte, dismissed the proceeding/action on the ground of a defect in service. Lack of personal jurisdiction is an affirmative defense that can be waived by, among other things, “appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss” … . “When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court’s jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court” … .

Since the respondents did not object to the Supreme Court’s jurisdiction over them in an answer or in their cross-motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the petition/complaint, the court should not have, sua sponte, raised the issue of the propriety of service … . Further, the respondents waived any objection to the propriety of service by appearing in the proceeding/action and cross-moving to dismiss the petition/complaint without raising the defense of lack of personal jurisdiction … . Matter of Weiss v County of Suffolk, 2025 NY Slip Op 02210, Second Dept 4-16-25

Practice Point: Defective service is an affirmative defense which, if not raised by a party, is waived. A judge cannot raise and decide the issue sua sponte.

 

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