New York Law (NYLE) Practice Exam

A defendant served with the complaint in a civil action made a pre-answer motion to dismiss the complaint on the ground that it failed to state a cause of action, but the motion was denied. In the defendant's answer any of the following defenses may be raised except:

1. Res judicata.

2. The statute of limitations.

3. Lack of subject matter jurisdiction.

4. Lack of personal jurisdiction.

The correct answer is: Lack of personal jurisdiction.

When a defendant in a civil action makes a pre-answer motion and that motion is denied, they still have the opportunity to raise certain defenses in their answer. However, specific defenses can become waivable if not properly addressed in the pre-answer motion. The correct answer pertains to the lack of personal jurisdiction. In New York, if a defendant makes a pre-answer motion that does not include the defense of lack of personal jurisdiction, this defense is generally waived. The rationale behind this rule is based on the idea of promoting judicial efficiency and ensuring that all potential defenses are raised early in the litigation. If a defendant believes that the court lacks personal jurisdiction over them, they must assert that argument in their pre-answer motion or it is forfeited in their subsequent answer. In contrast, defenses like res judicata, the statute of limitations, and lack of subject matter jurisdiction can still be asserted in the answer even after a motion to dismiss for failure to state a cause of action has been denied. These defenses do not carry the same waiver consequences in New York law, allowing a defendant to preserve them regardless of prior motions. Thus, the distinction lies in the procedural requirement regarding personal jurisdiction—the defendant loses the opportunity to contest this issue if it is not included in the initial