A defendant who does not, within the applicable statute of limitations, object to the plaintiff's joinder of the defendant without leave of court, but instead answers the plaintiff's complaint and participates in disclosure, cannot, after the expiration of the limitations period, effectively make the objection in an amended answer.

On February 24, 2004, Plaintiff allegedly sustained personal injuries when he fell in the roadway at the northeast corner of Ralph Avenue and Prospect Place in Brooklyn. On January 26, 2005, Plaintiff commenced a personal injury action without naming defendant Vales as a defendant. On March 15, 2006, without seeking leave of court, Plaintiff filed an Amended Summons and Amended Verified Complaint adding Vales as a defendant. On November 7, 2006 (prior to expiration of the statute of limitations), Vales served an Answer to the Amended Verified Complaint along with various discovery demands. On March 27, 2007 (after the expiration of the statute of [*2]limitations), without seeking leave of court, Vales served a Verified Amended Answer asserting for the first time an affirmative defense that "plaintiff added VALES CONSTRUCTION CORP. as a party defendant in a manner that was not in compliance with CPLR §1003."

In its motion, Vales contends that Plaintiff's Amended Verified Complaint should be dismissed as against it because Plaintiff failed to obtain leave of court before serving the Amended Summons and Amended Verified Complaint, joining it as an additional defendant in violation of CPLR 1003. (See e.g. Yadegar v International Food Market, 306 AD2d 526, 526 [2d Dept 2003].) CPLR 1003 provides in pertinent part:

"Parties may be added at any stage of the action by leave of court or by stipulation of all parties who have appeared, or once without leave of court within twenty days after service of the original summons or at anytime before the period for responding to that summons expires or within twenty days after service of a pleading responding to it."

In opposition, Plaintiff concedes that he failed to obtain leave of court prior to serving his Amended Summons and Amended Verified Complaint upon Vales in violation of CPLR 1003. Plaintiff contends, however, that Vales waived the "jurisdictional defect" by participating in disclosure proceedings, and failing to object prior to the expiration of the statute of limitations.

"Although a court order is required to add a new party to an action, and the failure to obtain such generally renders service on the new party a nullity, nevertheless, a failure to obtain leave of court may be waived and is not fatal in all cases [citations omitted]." (Santopolo v Turner Construction Co., 181 AD2d 429, 429 [1st Dept 1992]; Gross v BFH Co., Inc., 151 AD2d 452, 452 [2d Dept 1989].) A defendant waives the "jurisdictional defect" of improper joinder where the defendant answers the amended complaint without raising an objection to the improper joinder, and then delays until after the limitations period has run before moving to dismiss. (See Tarallo v Gottesman, 204 AD2d 303, 303 [2d Dept 1994]; Santopolo v Turner Construction Co., 181 AD2d at 429; Gross v BFH Co., Inc., 151 AD2d at 452; McDaniel v Clarkstown Central District No. 1, 83 AD2d 624, 625 [2d Dept 1981]; compare Public Administrator of Kings County v McBride, 15 AD3d 558, 559 [2d Dept 2005].) Conversely, a defendant does not waive the "jurisdictional defect" [*3]of improper joinder where it asserts the improper commencement of the action as an affirmative defense in its answer, even though the defendant thereafter participates in disclosure. (See Public Administrator of Kings County v McBride, 15 AD3d at 559.)

Here, Vales failed to preserve its objection to the improper joinder in its Verified Answer served on November 7, 2006. Vales thereafter engaged in disclosure by serving a host of discovery demands. Vales does not dispute that Plaintiff served responses to Vales's demands, and does not dispute Plaintiff's assertion that Vales appeared at numerous discovery conferences. Vales first raised its objection to the improper joinder in its Amended Verified Answer dated March 27, 2007, which was after the statute of limitations expired, and which was improperly served without leave of court in violation of CPLR 3025(b). Vales brought the instant motion to dismiss after the statute of limitations expired. As such, Vales waived its objection to the improper joinder. (See Tarallo v Gottesman, 204 AD2d at 303; Santopolo v Turner Construction Co., 181 AD2d at 429; Gross v BFH Co., Inc., 151 AD2d at 452; McDaniel v Clarkstown Central District No. 1, 83 AD2d at 625; compare Public Administrator of Kings County v McBride, 15 AD3d 558.)

It should be noted that, although Vales failed to seek leave of court prior to serving its Amended Verified Answer in violation of CPLR 3025(b), Plaintiff accepted it without objection. As such, Plaintiff may be deemed to have waived certain objections to Vales's service of the amended answer. (See Jordan v Aviles, 289 AD2d 532, 533 [2d Dept 2001]; Dime Savings Bank of New York FSB, 210 AD2d 572, 573 [3d Dept 1994]; Nassau County v Incorporated Village of Roslyn, 182 AD2d 678, 679 [2d Dept 1992], lv. dismissed 80 NY2d 972 [1992].) Even so, "the waiver of a jurisdictional defense cannot be nullified by a subsequent amendment to a pleading adding the missing affirmative defense." (McGowan v Hoffmeister, 15 AD3d 297, 297 [1st Dept 2005].) "By appearing in the action and electing to answer the complaint without an objection to jurisdiction, defendant[] conferred jurisdiction upon the court . . ."(Id. at 297.) Here, while Plaintiff may have waived its right to object to Vales's failure to seek leave of court prior to serving its Amended Verified Answer, the Amended Verified Answer cannot nullify Vales's prior waiver of the jurisdictional defense of improper joinder, and resuscitate Vales's ability to object to the improper joinder.

To allow Vales to now, after the limitations period has expired, effectively object to the otherwise improper joinder would conflict with the clear policy of not rewarding unreasonable and unnecessary sharp practice. (See generally Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:59 [reflecting a policy in CPLR 3211(e) that defendants promptly raise certain jurisdictional defenses].)

Accordingly, Vales motion to dismiss Plaintiff's Amended Verified Complaint as against it is denied.

In its cross-motion, Plaintiff seeks leave to amend its Verified Complaint to add Vales as a party defendant nunc pro tunc. Since it has been held that Vales waived its objection to the improper joinder, Plaintiff's cross-motion is denied as moot. [*4]

In sum, Vales's motion and Plaintiff's cross-motion are both denied.

January 9, 2008

__________________

Jack M. Battaglia

Justice, Supreme Court