Consent to Change / Service

Sperry Assoc. Fed. Credit Union v John, 2018 NY Slip Op 02823 [2d Dept. 2018]

CPLR 321(b)(1) provides that an attorney of record may be changed by filing a consent to change attorney signed by the retiring attorney and the party. Notice must be given to adverse parties. In this case, it appears that at the time the defendant's motion for leave to renew and reargue was made, no consent to change attorney had been filed. A technical failure to comply with CPLR 321(b), however, does not render the acts of the new attorney a nullity (see Diamadopolis v Balfour, 152 AD2d 532; Imor v Imor, 119 AD2d 913). In this case, the plaintiff claims no prejudice, and the consent to change attorneys was filed while the motion was still pending (see Elite 29 Realty LLC v Pitt, 39 AD3d 264). Thus, contrary to the plaintiff's contention, the belated compliance with CPLR 321(b) was not a basis to deny the defendant's motion (cf. Dobbins v County of Erie, 58 AD2d 733; Matter of Kitsch Riker Oil Co., 23 AD2d 502).

At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776). The plaintiff failed to meet that burden. Where a process server has no independent recollection of events, a process server's logbook may be admitted in evidence as a business record (see Gilmore v Tindel, 210 AD2d 1). Here, however, the logbook was not produced in court or introduced in evidence. Thus, there was no evidence—other than the process server's description of a business record not before the court, which the process server claimed he was unable to locate—to support the claim that service occurred at 7:05 p.m., when the person who allegedly received the papers was present to receive them.

Emphasis is mine.

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