Clermont v. Abdelrehim

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered March 29, 2016, which, insofar as appealed from, granted plaintiff’s motion to strike defendant Chuong Le, M.D.’s affirmative defense based on lack of personal jurisdiction and denied Le’s cross motion to dismiss the claims against him, unanimously affirmed, without costs. Plaintiff seeks damages for alleged medical malpractice in connection with spinal surgery that rendered her paralyzed from the waist down. Le waived his lack of service defense by failing to timely move to dismiss, as required by CPLR 3211 (e). If Le had never filed an answer, CPLR 3211 (e) would not have been implicated and the failure to serve him would have rendered all subsequent proceedings null and void (see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [2d Dept 2013], lv dismissed 22 *496 NY3d 947 [2013]). Because he did, thereby appearing in the action, at least on a limited basis (see CPLR 320 [b], [c]), he was bound to move to dismiss on the ground of lack of service within sixty days of asserting that defense in his answer (see Clermont v Abdelrehim, 144 AD3d 572 [1st Dept 2016]; cf. Moustafa v Jamaica Hosp. Med. Ctr., 304 AD2d 539, 540 [2d Dept 2003]). Although we reject Le’s proposed interpretation of CPLR 3211 (e), we nonetheless decline to award sanctions against him. Concur — Friedman, J.P., Gische, Kapnick, Kahn and Gesmer, JJ.