Under New York civil procedure, which defense is waived if not raised in the first response (answer or pre-answer MTD)?

• A. Subject matter jurisdiction
• B. Non-joinder of necessary parties
• C. Personal jurisdiction
• D. Failure to state a cause of action

Answer: (C)

In New York civil procedure, some defenses must be raised in the first response to the complaint (an answer or a pre-answer motion to dismiss) or they are waived. The defense to personal jurisdiction falls into this category. If you don’t challenge the court’s authority over the defendant in that initial pleading or motion, you lose the right to raise it later. The courts need to know early whether they have power over the defendant, or the proceeding would go forward without proper authority.

Why this fits the scenario better than the others: lack of subject matter jurisdiction is different because it can be raised at any time (even sua sponte by the court) and isn’t waived by delay. Non-joinder of necessary parties and failure to state a cause of action involve pleading or merits issues and aren’t treated the same way as a waiver for lack of jurisdiction.