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Failure to Make Timely Motion to Dismiss Based Upon Improper Service Constituted a Waiver of the Jurisdictional Defense

The Third Department determined defendant’s (O’Neill’s) jurisdictional defense based on improper service was waived by the failure to move for judgment on that ground within 60 days:

Plaintiff did not effectuate proper substituted service on O’Neill because she failed to mail a copy of the pleadings to O’Neill after the process server left a copy with the president of Hafner Valuation at O’Neill’s place of business (see CPLR 308 [2]). Despite the error in service and defendants having raised it in their answer,O’Neill waived his objection on this ground by failing to move for judgment on that basis within 60 days of serving the answer (see CPLR 3211 [e]…).  Sutton v Hafner Valuation Group Inc, 516779, 3rd Dept 3-6-14

 

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