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Question about procedure: filing a motion to dismiss gives me more time to prepare answer?

New York, NY |

I want to double check procedures - if I'm sued for breach of contract , and I have 20 days to file an answer , and I file a motion to dismiss based on lack of personal jurisdiction and forum non convenient , should I ( or do I have to ) file an answer as well just in case at the same time , or will I be granted extra time based on the results of the motion ?

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Attorney answers 3


File answer at the same time. Also, retain an attorney to assist you.

If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or


Dear will I be granted extra time?

Not necessarily. If you have twenty days to file an answer that translates to an admission that you were served in person with the Summons and Complaint. The twenty days to answer period is the shorter period due to the fact that with personal service, service is "complete" upon delivery; whereas, other methods of service to gain personal jurisdiction require additional acts, such as mailings, and in those instances, the time to answer begins to run from the time that "service is complete." Your statement that you have twenty days to answer is the same as an admission that you were served in hand with the Summons and Complaint.

A claim that service is improper when a defendant is personally served may be considered both frivolous and vexatious and subject the moving party to both costs and sanctions.

If you answer and make a motion to dismiss (on a grounds allowed in CPLR 3211 (a)) and both the answer and the motion set out a factual basis to dismiss the complaint on grounds of a lack of personal jurisdiction, then the motion to dismiss could face dismissal as the same objection to jurisdiction is raised in the answer. if your raise the objection to jurisdiction in the answer the defense is waived unless you make a motion for summary judgment within sixty days. If you move and answer, you will find out that you cannot set up two motions for judgment dismissing the complaint for want of personal jurisdiction. Either the attorney for the plaintiff or the court will moot the defense if raised in the answer and take you along the route of the pre-Answer motion (it is called a pre-Answer motion because it is made before answering the complaint) or you invite a motion for summary judgment in response to your answer and motion to dismiss. I cannot see how or why a party without an attorney would want to take na approach that may single you out.

The extension for a time to serve a responsive pleading is only needed when the motion is made (and the answer is not made) and the court does not dismiss and provides for a responsive pleading in ten days from the date of service of the order denying the motion to dismiss.

You provide no reason t respond to your mention that you would move to dismiss on an inconvenient forum claim.

You may find that trying to out-lawyer a party with an attorney with technical responses may very well back fire. And no one answering any one of your five questions posted in AVVO is your attorney. Do not mistake the responses to your questions with legal advice. Legal advice comes to you in an attorney client relation in a confidential and privileged setting.

Within the last three days of your questions, nearly every attorney has suggested that you deal with this by hiring counsel. Your admission that you have only twenty days to answer would go a long way to helping your attorney not make a mistake and argue that service was improper.

Good luck.

The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.


If you file a motion to dismiss and lose you will be given at least 20 days to answer. However, some lawyers will extend your time to answer if you ask them to. Get it in writing if they do. Many lawyers will ask for something in return for an extension such as an agreement not to challenge service.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.

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