Britt v. Freidus

95 A.D.2d 751, 464 N.Y.S.2d 193, 1983 N.Y. App. Div. LEXIS 18651

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 1983
• Status: Published

Opinion

— Order, Supreme Court, New York County (J. C. Leon-forte, J.), entered December 7,1982, granting plaintiff’s motion to dismiss the jurisdictional defense contained in the amended answer, is unanimously reversed, on the law, and the motion to dismiss the defense of lack of jurisdiction of the person (the seventh defense) is denied, without costs. On the last day to amend the answer as of right, defendant served a notice of motion for an extension of time to serve an amended answer. It is clear from the supporting papers that the motion was for an extension of time to serve an amended answer “as of right,” i.e., pursuant to CPLR 3025 (subd [a]). The court granted the motion “to extend the time” in which to serve an amended answer; it did not say, as would be usual on a motion for leave to serve an amended pleading, that it was granting leave to amend. As the motion to amend a pleading can be made "at any time” (CPLR 3025, subd [b]), there was no point to defendant seeking or the court’s granting an extension of time to serve an amended answer unless it was to serve an amended answer as of right. It is thus clear that defendant sought and the court granted defendant an extension of time in which to serve an amended answer which could serve all the functions of an amended answer as of right. Concededly, an answer amended as of right may interpose a defense of lack of jurisdiction of the person, even though the original answer did not. We do not pass on the validity of the defense. Concur — Carro, J. P., Silverman, Bloom, Fein and Kassal, JJ.