Salerno v. Kearney

William L. Underwood, Jr., J.

The crucial question to be determined on this motion to dismiss the complaint is whether or not a defendant may move to dismiss a complaint upon the ground that the court does not have jurisdiction .over her person (CPLR 3211, subd [a], par 8) after she has preserved the objection in her answer. The case of Wahrhaftig v Space Design (29 AD2d 699) has held that a defendant is precluded from making the motion. This court respectfully disagrees with that holding.

The Wahrhaftig case is a literal reading of CPLR 3211 (subd [e]), and does not take into account the…