Service round-up

CPLR § 306-b. Service of the summons and complaint, summons with
notice, third-party summons and complaint, or petition with a notice of
petition or order to show cause

CPLR § 312-a Personal service by mail
(a) Service
(b) Completion of service and time to answer

CPLR § 301 Jurisdiction over persons, property, or status

CPLR § 302 Personal Jurisdiction by acts of non-domiciliaries

CPLR
§ 308 Personal service upon a natural person
(4) Nail and Mail

CPLR R. 305 Summons; supplemental summons, amendment

I had less of these laying around than I thought.

JPMorgan Chase Bank, N.A. v Szajna, 2010 NY Slip Op 03286 (App. Div., 2nd, 2010)

The process server retained by the plaintiff made three attempts to
serve the defendant at his dwelling. Contrary to the defendant’s
contention, the three attempts to serve him at his dwelling at different
times and on different days, including an attempt on an early weekday
morning and an attempt during midday Saturday, were sufficient to
constitute “due diligence” within the meaning of CPLR 308(4)
(see County of Nassau v Gallagher, 43 AD3d 972,
973-974; Johnson v Waters, 291 AD2d 481; Matos v Knibbs, 186
AD2d 725; Mitchell v Mendez, 107 AD2d 737, 738). Since there was
no indication that the defendant worked Saturdays or that his workplace
was readily ascertainable, the plaintiff was not required to attempt to
serve the defendant at his workplace
(see Johnson v Waters, 291
AD2d 481; Matos v Knibbs, 186 AD2d 725; Mitchell v Mendez, 107
AD2d at 738; cf. Pizzolo v Monaco, 186 AD2d 727). Accordingly,
the process server properly resorted to service of process pursuant to
CPLR 308(4), and the defendant’s motion to vacate the default judgment
for lack of jurisdiction was properly denied.

Klein v Educational Loan Servicing, LLC, 2010 NY Slip Op 02519 (App. Div., 2nd, 2010)

Here, the defendants did not seek dismissal of the complaint insofar
as asserted against the corporate defendants on the ground of lack of
jurisdiction under either CPLR 301 or 302. Rather, the defendants
contended that the complaint should be dismissed insofar as asserted
against the corporate defendants based on improper service of process.
By failing to contend that there was no jurisdiction under either CPLR
301 or 302 over the corporate defendants in their cross motion, the
defendants waived their challenge to whether the corporate defendants
were subject to personal jurisdiction (see Weisener v Avis
Rent-A-Car,
182 AD2d 372, 373; Hatch v Tu Thi Tran, 170 AD2d
649, 650; Boswell v Jiminy Peak, 94 AD2d 782, 783).

Nevertheless, the plaintiff’s motion for leave to enter a default
judgment should have been denied and the complaint dismissed as against
all defendants since the plaintiff failed to present proof of valid
service of the summons and complaint as required by CPLR 312-a(a) and
(b). The plaintiff submitted evidence that he served the defendants by
certified mail, return receipt requested. However, he presented no
evidence that copies of the summons and complaint were sent to the
defendants, by first-class mail, together with, inter alia, two copies
of a statement of service by mail and acknowledgment of receipt, and
that the signed acknowledgment of receipts were mailed or delivered to
the plaintiff (see CPLR 312-a[a], [b]). In the absence of proper
service, no personal jurisdiction was acquired over the defendants
(see
Bennett v Acosta,
68 AD3d 910; Horseman Antiques, Inc. v Huch, 50
AD3d 963, 964; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375,
375).

Washington Mut. Bank v Holt, 2010 NY Slip Op 01787 (App. Div., 2nd, 2010)

The burden of proving that personal jurisdiction has been acquired over
the defendant Oscar Holt III in this mortgage foreclosure action rests
with the plaintiff (see Bankers Trust Co. of Cal. v Tsoukas, 303
AD2d 343; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233
AD2d 351). In opposition to Holt’s motion to vacate the judgment of
foreclosure and sale, the plaintiff submitted the process server’s
affidavit of service. Generally, a process server’s affidavit of service
establishes a prima facie case as to the method of service and,
therefore, gives rise to a presumption of proper service
(see
Household Fin. Realty Corp. of N.Y. v Brown,
13 AD3d 340). However,
Holt’s sworn denial that he was served by the plaintiff’s process server
and submission of proof of unexplained, serious irregularities in the
service of the reputed tenants of the foreclosed property involving the
same process server has rebutted this presumption of proper service. In
light of Holt’s denial of receipt of the summons and complaint served
pursuant to CPLR 308(4) and the submission of an affidavit raising bona
fide concerns involving the veracity of the process server, a hearing is
required to determine, by a preponderance of the evidence, if the
process server acted with due diligence before resorting to “nail and
mail” service pursuant to CPLR 308(4)
(see Mortgage Access Corp. v
Webb,
11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303
AD2d 343, 344).

Bennett v Acosta, 68 AD3d 910 (App. Div., 2nd, 2009)

The pro se plaintiff failed to establish that he complied with a
legally-prescribed method of
service authorized by the CPLR in attempting to acquire personal
jurisdiction over the defendant.
The plaintiff submitted his own sworn affidavit of service, which showed
that his first attempt at
service was by regular mail. The plaintiff failed to establish that his
first attempt to serve the
defendant satisfied the requirements of CPLR 312-a
(see Horseman
Antiques, Inc. v
Huch
, 50 AD3d 963, 964 [2008]; Dominguez v Stimpson Mfg. Corp.,
207 AD2d
375 [1994]).

The plaintiff submitted evidence that his second attempt at
service was by certified mail,
return receipt requested. This proof was insufficient to establish that
his second attempt satisfied
the requirements of CPLR 312-a since there was no proof that the summons
and complaint were
sent to the defendant, by first-class mail, together with, inter alia,
two copies of a statement of
service by mail and acknowledgment of receipt, and that the signed
acknowledgment of receipt
was mailed or delivered to the plaintiff (see CPLR 312-a [a],
[b]).
Accordingly, the
Supreme Court properly denied the plaintiff’s motion for leave to enter a
default judgment on the
issue of liability and directed the dismissal of the complaint for lack
of personal jurisdiction
(see Dominguez v Stimpson Mfg. Corp., 207 AD2d at 375; Matter
of Shenko Elec. v
Hartnett
, 161 AD2d 1212, 1213 [1990]).

Miller v Cambria Car Wash, LLC, 8 AD3d 827 (App. Div., 2nd, 2009)

CPLR 305 (b) provides, in relevant part, that when a summons is
served without a
complaint, the summons shall contain “a notice stating the nature of the
action and the relief
sought.” Here, the plaintiff’s summons contained the following notice:
“The nature of this action
is to recover money damages for negligence; negligence per se. The
relief sought is $25 Million
Dollars in damages.”

Contrary to the determination of the Supreme Court and the
defendant’s contentions, the
language in this summons complied with the statutory requirements, and
adequately apprised the
defendant of the nature of the action and the relief sought
(see Grace v Bay Crane Serv. of Long Is., Inc., 12
AD3d 566

[2004]; Darrow v Krzys, 261 AD2d 778 [1999]; Fitzpatrick v
Slagowitz
, 201
AD2d 614 [1994]; Rowell v Gould, Inc., 124 AD2d 995 [1986]).

Rotering v Satz, 2010 NY Slip Op 02120 (App. Div., 2nd, 2009)

The Supreme Court, sua sponte, directed dismissal of the complaint on
the basis, inter alia, that the plaintiff failed to file proof of
service of the summons and complaint, citing CPLR 306-b. Pursuant to
that statute, a court may only dismiss a complaint for failure to effect
timely service of process “upon motion,” not on its own initiative (see
CPLR 306-b). The defendants never moved to dismiss the complaint (see
CPLR 3211[a][8]; [e]). Thus, the Supreme Court erred in doing so sua
sponte
(see Daniels v King Chicken & Stuff, Inc., 35 AD3d
345).

Moffett v Gerardi, 2010 NY Slip Op 02109 (App. Div., 2nd, 2010)

In November 2004 the plaintiff commenced this action to set aside an
allegedly fraudulent deed by filing a summons and complaint with the
clerk of the Supreme Court, Suffolk County. On December 6, 2004, the
plaintiff filed an affidavit of service indicating that service of the
summons and complaint had been made pursuant to CPLR 308(4) at an
address in Wading River. In lieu of serving an answer, in December 2004
the defendant moved pursuant to CPLR 3211(a)(8) to dismiss the complaint
on the ground that the court lacked personal jurisdiction over him.
While the defendant’s motion to dismiss was pending, the plaintiff filed
a second affidavit of service indicating that he had re-served the
defendant on May 9, 2005, at an address in Rocky Point. The plaintiff
also wrote to the Supreme Court, stated that he had re-served the
defendant, and enclosed a copy of the affidavit of service.

The defendant then served an answer with counterclaims, dated May
23, 2005. Although the answer contained affirmative defenses, the
defendant did not interpose an affirmative defense asserting lack of
personal jurisdiction.

In an order dated July 5, 2005, the Supreme Court granted the
defendant’s motion pursuant to CPLR 3211(a), determining that personal
jurisdiction over the defendant had not been obtained. The court stated
in a footnote that it was aware that the plaintiff had attempted to
re-serve the defendant, but noted that the affidavit of service was
defective as it did not specify the manner of service, and that such
service did not occur within 120 days after the filing of the summons
and complaint.

Despite the Supreme Court’s order, the defendant submitted to a
deposition on November 4, 2005, and noticed and conducted his own
deposition of a nonparty witness on January 18, 2006. In [*2]a letter dated November 20, 2006, the
plaintiff demanded further discovery; the defendant did not respond to
the letter.

On October 10, 2007, the defendant served the plaintiff with a
notice of entry of the order dated July 5, 2005. The notice stated that
the order had been entered in the office of the Suffolk County Clerk on
July 11, 2005. The plaintiff then promptly moved, by notice of motion
dated October 19, 2007, inter alia, “to restore the case to the
calendar” and for such other and further relief as the Supreme Court
deemed appropriate.
In the order on appeal the Supreme Court granted the
motion, vacated its July 5, 2005, order, denied the defendant’s motion,
and reinstated the complaint.

While the plaintiff’s motion was denominated as one “to restore
the case to the calendar,” it was, in effect, a motion for leave to
reargue and renew.
CPLR 2221 allows the court to reconsider a prior
order in the event that the court overlooked or misapprehended matters
of fact or law, or when new facts are presented which were not offered
on the prior motion which would change the prior determination. Here, in
support of the branch of his motion which was, in effect, for leave to
renew, the plaintiff demonstrated that the defendant participated in
discovery for 2½ years after entering the July 2005 order without
serving the plaintiff with a copy of that order with notice of entry. In
support of the branch of his motion which was, in effect, for leave to
reargue, the plaintiff asked the court to revisit the impact of his
re-service of the summons and complaint on the defendant in May 2005.
Therefore, it was within the Supreme Court’s authority, in effect, to
treat the plaintiff’s motion as one for leave to renew and reargue and
to grant renewal and reargument.

Further, upon renewal and reargument, the Supreme Court properly
vacated its July 5, 2005, order, denied the defendant’s motion, and
reinstated the complaint. Although the plaintiff’s first attempt to
serve the summons and complaint upon the defendant was defective, the
plaintiff was not prohibited from re-serving the summons and complaint
properly. While service of a summons and complaint must be made within
120 days after filing, the Supreme Court has the authority to extend
that period of time in the interest of justice (see CPLR 306-b).
Here, the defendant waited almost 2½ years to challenge the plaintiff’s
second service of the summons and complaint
. During that time the
defendant served an answer that did not assert the affirmative defense
of lack of personal jurisdiction, and participated in discovery. Under
those circumstances, the Supreme Court properly found that the defendant
waived any objection to the re-service beyond the 120-day period
allowed by CLPR 306-b, and that the plaintiff’s re-service upon the
defendant cured the jurisdictional defect before the complaint was
dismissed by the July 2005 order
(cf. Midamerica Fed. Sav. Bank v
Gaon,
242 AD2d 610, 611-612).

Varon v Maimonides Med. Ctr., 67 AD3d 779 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion
in denying the plaintiffs’ motion pursuant to CPLR 306-b to extend their
time, nunc pro tunc, to
serve the summons and complaint upon the defendant. The plaintiffs
failed to establish that good
cause existed to extend the time for service. Despite the expiration of
the statute of limitations,
the record demonstrates an extended delay in service, lack of diligence
in effecting service, and
the failure to promptly move for an extension (see Leader v Maroney,
Ponzini &
Spencer
, 97 NY2d 95 [2001]). Accordingly, the plaintiffs failed to
establish good cause for
an extension or that the interests of justice would be served by an
extension. Thus, the complaint
was properly dismissed.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s