Commercial Division Blog
Posted: October 2, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Summary Judgment, Summary Judgment in Lieu of Complaint, Service of Process
Service of Process Not Proper on Party’s Attorney Absent Express Authorization from Party
On September 15, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Credit Europe Bank (Dubai) Ltd. v Shetty, Index No. 651931/2023, 2023 NY Slip Op 33204(U) denying the plaintiff’s motion for summary judgment in lieu of complaint based on improper service of process.
The Court held that, despite an affidavit from an attorney representing the defendant in another action that he was authorized to accept service on behalf of that defendant in this action, plaintiff had failed to show proper service of process because that attorney was not attorney-of record in the underlying action, and because there was no evidence that the defendant had authorized that attorney to accept process on its behalf. The Court explained:
Service on an attorney is proper only where the attorney has appeared in the action in which service is claimed to have been admitted (CPLR 2103[b]). "Absent a formal appearance by counsel of record, serving process on a party's attorney is not sufficient to establish personal jurisdiction absent proof of the attorney's authorization" (Credit Europe Bank (Dubai) Ltd at * 1 citing Redbridge Bedford, LLC v 159 N 3rd St. Realty Holding Corp., 175 AD3d 1569, 1571 [2d Dept 2019]). As previously determined by the Court, summary judgment in lieu of complaint should be denied where apparent counsel for the defendant admits service but fails to provide any proof of their authorization to accept it (Id. citing Lord Sec. Corp. v Moorer, 2021 N.Y. Slip Op. 33706[U], 1 [N.Y. Sup Ct, New York County 2021] [other citations omitted]). The Court's prior order was "without prejudice to renewal and properly serving Shetty'' (Id. at *2 [ citations omitted]).
In an effort to demonstrate proper service of its second motion for summary judgment in lieu of a complaint in this action, CEBD submits an affirmation of service of its counsel (NYSCEF 34) annexed to which is an affirmation of Benjamin Bianco, Esq. (NYSCEF35), whose firm represents Shetty in another action. Mr. Bianco states that he is authorized to accept service in this action but does not attach any authorization from Shetty - the person to be served - or other evidence of his authority. While the Court does not have reason to question the truthfulness of Mr. Bianco's statement, it remains insufficient to establish personal jurisdiction over Shetty.
Contact the Commercial Division Blog Committee at firstname.lastname@example.org if you or a client have questions concerning proper service of process or motions for summary judgment in lieu of complaint.