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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: January 3, 2019

Action Dismissed for Failure Timely to Serve Defendants

On December 17, 2018, Justice Bransten of the New York County Commercial Division issued a decision in Juma Tech. Corp. v. Servidio, 2018 NY Slip Op. 33347(U), dismissing an action for failure timely to serve the defendants, explaining:

CPLR 306-b also states, in relevant part, that service of the summons and complaint shall be made within one hundred twenty days after the commencement of the action or proceeding. Moreover, if service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant. Plaintiffs commenced this action on November 21, 2017 and, thus, were required to serve Defendants by March 21, 2018.

The affidavits of service reveal that none of the defendants were served within 120 days of November 21, 2017. In their opposition to the instant motions, plaintiffs fail to address their failure to serve defendants within the timeframe set forth in CPLR 306-b. Instead, plaintiffs assert that they intend to cross-move for an extension of time to complete service. To date, plaintiffs have not filed a motion for an extension of time and have not proffered an excuse for failing to do so. Nevertheless, plaintiffs urge the court to permit them additional time to effectuate service.

The court is authorized to dismiss the complaint in the absence of a cross-motion for an extension. As plaintiffs have not cross-moved for an extension of time, the Court concludes service on defendants was untimely and the Complaint is dismissed against the Nectar Holdings, VCAL, VCAF, the Servidio Defendants and Thomson.

(Internal quotations and citations omitted).

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

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