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Posted: May 15, 2017

Demand of Complaint May Be Made Before Proof of Service is Filed

On May 4, 2017, the First Department issued a decision in Wimbledon Financing Master Fund, Ltd. v. Weston Capital Management LLC, 2017 NY Slip Op. 03614, holding that a demand for complaint may be made before proof of service is filed, explaining:

Plaintiff commenced this securities fraud action against 26 defendants by filing a summons with notice on October 16, 2015, and served defendant Manley pursuant to CPLR 308(2) twelve days later. On November 3, 2015, before plaintiff had filed proof of service, defendant served a demand for a complaint pursuant to CPLR 3012(b). Plaintiff, taking the position that the demand was a nullity, asked defendant to agree to accept a complaint served by the end of December. Defendant refused, and instead moved to dismiss the action on November 24, the 21st day after service of its demand. Plaintiff served a complaint on December 24, 2015.

We agree with the motion court that under CPLR 3012(b), defendant was permitted to serve a demand for a complaint after being served, notwithstanding that service was not technically complete. The time frames applicable to defendants set forth in CPLR 3012(b) are deadlines, not mandatory start dates. In the cases relied on by plaintiff, the defendants’ demands were ineffective to trigger plaintiff’s time to serve a complaint pursuant to CPLR 3012(b) because the defendants had not yet been served with a summons with notice, and the CPLR makes no provision for an appearance or a demand for a complaint before the summons is served.

(Internal quotations and citations omitted).

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