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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: August 25, 2019

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 Revivo with a copy of the summons and complaint by leaving it with a woman at a particular address, who identified herself as Revivo’s wife. He also testified that within 20 days, he mailed a copy of the summons and complaint to Revivo. Revivo and his wife testified that neither of them had received copies of the summons and complaint, and they noted discrepancies between the description of the person allegedly served and Revivo’s wife. After the hearing, the Referee determined that Revivo had not been properly served. The Referee found that the plaintiff had failed to establish compliance with either the delivery or the mailing requirements of CPLR 308(2). As to the mailing requirement, the Referee found that the affidavit of service, which was affirmed by the process server who appeared at the hearing, did not indicate to what address the summons and complaint were mailed, and, therefore, the affidavit of service was deficient on its face. Upon the Referee’s decision, the Supreme Court denied the plaintiff’s motion and directed the dismissal of the complaint. The plaintiff appeals.

CPLR 308 sets forth the different ways by which service of process upon an individual can be effected in order for the court to obtain jurisdiction over that person. CPLR 308(2) provides, in pertinent part, that personal service upon a natural person may be made by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by mailing the summons to the person to be served at his or her last known residence. Service in this manner is a two-step form of service in which a delivery and mailing are both essential. Jurisdiction is not acquired pursuant to CPLR 308(2) unless there is strict compliance with both steps. The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process.

We agree with the Supreme Court’s determination that the plaintiff failed to meet its burden of proving that jurisdiction over Revivo was obtained. The testimony of the process server and the only affidavit of service introduced into evidence at the hearing by the plaintiff, indicating that service of process was made pursuant to CPLR 308(2), failed to indicate the address to which the summons and the complaint were mailed. Inasmuch as the plaintiff did not proffer proof of service demonstrating that service of the summons and complaint had been properly effectuated in compliance with the statute, dismissal of the complaint was appropriate.

(Internal quotations and citations omitted).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. Failing properly to serve a defendant with the papers initiating an action can result in its dismissal, regardless of whether the defendant had actual notice of the lawsuit. 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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