## Facts

- Goldie Gilchrist, a New York resident, was struck by a truck while walking on a highway in Georgia.
- The truck was owned by David Shepherd and driven by Thomas Rouse; both defendants were Georgia residents.
- Gilchrist suffered serious injuries and died months later.
- Frank B. Iacovangelo, as administrator of Gilchrist’s estate, sued Shepherd and Rouse in New York, alleging negligence and vicarious liability.
- Defendants served an answer that did not assert lack of personal jurisdiction.
- Within 20 days of serving that answer, defendants served an amended answer as of right asserting lack of personal jurisdiction.
- Defendants then moved to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8).
- Plaintiff argued the personal-jurisdiction objection was waived under CPLR 3211(e) because it was omitted from the original answer.

## Issues

1. Whether a defendant waives a CPLR 3211(a)(8) lack-of-personal-jurisdiction defense by omitting it from the original answer, when the defense is added in an amended answer served as of right within CPLR 3025(a)’s 20-day period.

## Decision

- The New York Court of Appeals affirmed dismissal for lack of personal jurisdiction.
- The court held that omission of a personal-jurisdiction defense from an original answer is not a waiver when the defendant corrects the omission in an amended answer served as of right within the CPLR 3025(a) amendment period.
- The court treated the timely amended answer as the operative “responsive pleading” for CPLR 3211(e) waiver purposes.

## Legal Principles

- CPLR 3211(e) waives a CPLR 3211(a)(8) objection if a party makes a CPLR 3211(a) motion without raising it, or if (having made no such motion) the party does not raise it in the responsive pleading.
- When a defendant amends an answer as of right within CPLR 3025(a)’s 20-day window, the amended answer may supply an omitted lack-of-personal-jurisdiction defense without triggering waiver under CPLR 3211(e).
- Waiver rules are applied according to the statute’s expressed circumstances; courts should not extend waiver beyond those circumstances when the CPLR provides an unconditional, time-limited right to amend to correct pleading omissions.

## Conclusion

A defendant who fails to plead lack of personal jurisdiction in an initial answer does not waive the defense if it is asserted in an amended answer served as of right within the CPLR 3025(a) amendment period; dismissal for lack of personal jurisdiction is proper in that circumstance.


Iacovangelo v. Shepherd, 5 N.Y.3d 184 (N.Y. 2005)