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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: May 24, 2019

Court Excuses Late Filing of Affidavit of Service

On May 13, 2019, Justice Borrok of the New York County Commercial Division issued a decision inĀ 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 action is commenced when the pleadings are filed with the court. The court may dismiss an action without prejudice for lack of personal jurisdiction if the plaintiff fails to serve the pleadings within 120 days. The court may also extend the plaintiff’s time for service of the pleadings for good cause shown or in the interest of justice.

Mr. Parry alleges that he was never served with the Summons and Complaint with respect to this action. However, Ms. Furuya submits an affidavit of service indicating that a true copy of the summons and complaint was affixed to Mr. Parry’s dwelling or usual place abode on December 20, 2018 at 2: 10 PM, and an affidavit of mailing indicating that the same was mailed to Mr. Parry at his dwelling or usual place of abode by First Class Mail on October 10, 2018. An affidavit of service in accordance with CPLR 302 is prima facie evidence that process was properly served. A conclusory assertion that a defendant was never properly served is insufficient to rebut the presumption of proper service. Here, Mr. Parry’s bare denial of service is insufficient to rebut the presumption of proper service to which the proof of service is entitled.

Mr. Parry also challenges the proof of service filed by Ms. Furuya on the ground that it was not timely filed. Mr. Parry argues that the proof of service was filed more than 50 days after the alleged service was completed and was therefore untimely under CPLR 308 [2], which requires proof of service to be filed within 20 days after the mailing of the summons and complaint. A plaintiff’s delay in filing proof of service pursuant to CPLR 308 is not a jurisdictional defect but a procedural irregularity that may be corrected by the court nunc pro tunc. CPLR 2001 allows a court to permit a mistake, omission, defect, or irregularity in the filing process to be corrected at any stage of an action, so long as it does not prejudice a substantial right of a party. CPLR 2004 permits the court to extend the time for any act by a party in an action for good cause shown. Here, Mr. Parry was properly served by “nail and mail” service pursuant to CPLR 308[4] and 313. The proof of service was filed on November 30, 2018, 50 days after service was completed and 31 days after the time to file proof of service had expired under CPLR 308[4]. The delay in filing proof of service was inadvertent and was promptly corrected. This delay constitutes a procedural irregularity and is not a jurisdictional defect that would support dismissal under CPLR 3211[a][8]. Deeming the proof of service to be timely filed would serve the interests of justice and judicial economy and would not prejudice a substantial right of any party. If the filing of the proof of service is deemed timely, Mr. Parry will be in the same position as he would have been had the proof of service been filed within 20 days. Accordingly, Mr. Parry’s motion to dismiss pursuant to CPLR 306-b and 3211[a][8] is denied, Ms. Furuya’s cross motion is granted, and the court deems the filing of the proof of service to be timely, nunc pro tunc. Mr. Parry shall have 20 days from the date of entry of this Decision and Order to file an answer.

(Internal citations omitted).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. As shown here, these are rules include filing proof of service of the summons and complaint on the defendant within a set period. 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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