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Current Developments in the Commercial Divisions of the
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Posted: December 4, 2017

No Jurisdiction Over Defendants If Proper Service Under the CPLR Is Not Made, Even if Defendants Received the Documents

On November 29, 2017, the Second Department issued a decision in Josephs v. AACT Fast Collections Services, Inc., 2017 NY Slip Op. 08357, holding that if defendants were not properly served, the court had no jurisdiction over them regardless of whether they received the Summons and Complaint, explaining:

The affidavits of service filed by the plaintiffs, indicating that they attempted to effect service of the supplemental summons and amended complaint upon Lubarsky and Tarnovsky pursuant to CPLR 308(2), fail to indicate that the process server mailed the supplemental summons to either of these defendants. Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with. Therefore, the affidavits of service did not establish, prima facie, that service was properly effected pursuant to CPLR 308(2). We note that when the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents. Since the plaintiffs failed to submit any evidence that the requirements for service of process were met with respect to Lubarsky and Tarnovsky, the court should have directed the dismissal of the amended complaint insofar as asserted against those defendants pursuant to CPLR 3211(a)(8).

(Internal quotations and citations omitted) (emphasis added).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client has a question regarding the proper way to serve a defendant, bringing them into a lawsuit.

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