On September 7, 2022, Justice Cohen of the New York County Commercial Division issued a decision in Continuum Energy Tech., LLC v. Iron Oak, Inc. (USA), 2022 NY Slip Op. 33000(U), holding that defendants waive the defense of improper service by failing to plead it with particularity, explaining:
The Court . . . accepts Plaintiffs’ argument that Defendants have waived any challenge to service of process by failing to preserve such objections. CPLR 3211 [ e] provides, an objection that the summons and complaint was not properly served is waived if, having raised such an objection, the objecting party does not move for judgment on that ground within sixty days after serving the pleading. Here, Defendants filed an Amended Answer on February 28, 2022 asserting generally that the Court lacks jurisdiction over Defendants. Since a challenge to the basis of the court’s jurisdiction is distinct from a claim of defective service of process, Defendants were required to plead this defense with particularity. Thus, the affirmative defense actually pleaded did not fairly apprise Plaintiffs of the objections now made and the Court finds the defense waived.
(Internal quotations and citations omitted).