On February 26, 2020, the Second Department issued a decision in BAC Home Loans Servicing, L.P. v. Herbst, 2020 NY Slip Op. 01316, holding that the expiration of the statute of limitations supported granting additional time to serve, explaining: As relevant here, CPLR 306-b provides that service of the summons and complaint shall be made... Read more »
Blogs
Posts Categorized: Service of Process
Plaintiff Prevails at Traverse Despite Process Server’s Absence
On November 21, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Eros Intl. PLC v. Mangrove Partners, 2019 NY Slip Op. 33461(U), holding that a plaintiff had established proper service despite the process server’s absence from the traverse hearing, explaining: At the traverse hearing, the burden fell on Eros... Read more »
Complaint Fails Because of Insufficient Affidavit of Service
On August 21, 2019, the Second Department issued a decision in Aurora Loan Servs., LLC v. Revivo, 2019 NY Slip Op. 06210, affirming the dismissal of a complaint because the affidavit of service failed sufficiently to show compliance with the CPLR, explaining: At the hearing, a process server testified for the plaintiff that he served... Read more »
Corporate Defendant’s Mail Delivery Problems Not Basis for Vacating Default Judgment
On June 17, 2019, Justice Borrok of the New York County Commercial Division issued a decision in Fisher v. Lewis Constr. NYC, Inc., 2019 NY Slip Op. 31775(U), holding that a corporate defendant’s mail delivery problems were not a basis for vacating a default judgment, explaining: Under CPLR 5015(a)(1), a court may relieve a party... Read more »
Defendant Fails to Overcome Presumption of Proper Service
On May 29, 2019, the Second Department issued a decision in Wells Fargo Bank, NA v. Burshstein, 2019 NY Slip Op. 04224, holding that a defendant had failed to overcome the presumption of proper service, explaining: A process server’s affidavit of service constitutes prima facie evidence of proper service. Although a defendant’s sworn denial of... Read more »
Court Excuses Late Filing of Affidavit of Service
On May 13, 2019, Justice Borrok of the New York County Commercial Division issued a decision in Furuya v. Parry, 2019 NY Slip Op. 31354(U), excusing the late filing of an affidavit of service, explaining: CPLR 306-b provides that a plaintiff must serve the summons and complaint within 120 days after commencement of an action. An... Read more »
Party Asserting Lack of Service as an Affirmative Defense Must Move for Judgment on that Defense Within 60 Days of Answering
On May 8, 2019, the Second Department issued a decision in U.S. Bank N.A. v. Roque, 2019 NY Slip Op. 03648, holding that a party asserting lack of service as an affirmative defense must move for judgment on that defense within 60 days of answering, explaining: An objection that the summons and complaint was not properly... Read more »
Action Dismissed For Failure Timely to Serve Summons and Complaint
On February 7, 2019, Justice Platkin of the Albany County Commercial Division issued a decision in Plank, LLC v. Dutch Vil., LLC, 2019 NY Slip Op. 50188(U), dismissing an action for failure timely to serve the summons and complaint, explaining: CPLR 306-b requires service of process to be made within 120 days of the filing of... Read more »
Failure to Serve Order to Show Cause as Directed Jurisdictional Defect
On January 23, 2019, the Second Department issued a decision in Boucan NYC Café, LLC v. 467 Rogers, LLC, 2019 NY Slip Op. 00416, holding that the failure to serve an order to show cause was a jurisdictional defect, explaining: We agree with the defendant’s contention that the service requirements set forth in the order to... Read more »
Court Grants Extension of Time To Serve Defendant Even Though Plaintiff Did Not Provide Good Cause for Failure Timely to Serve
On November 5, 2018, Justice Livote of the Queens County Commercial Division issued a decision in FCS Group, LLC v. Chica, 2018 NY Slip Op. 33433(U), extending a plaintiff’s time to serve even though the plaintiff did not show good cause for failing timely to serve, explaining: CPLR 32ll(a)(8) provides that a party may move the... Read more »