425 Broadhollow Road
Suite 417
Melville, NY 11747

631.282.8985
Freiberger Haber LLP
10 Grand Central
155 East 44th Street, 6th Floor
New York, NY 10017

212.209.1005

Plaintiff’s Filing of an Affidavit of Service of the Summons and Complaint Several Days Late Results in the Vacatur of a Default Judgment Obtained Over Six Years Earlier

Print Article
  • Posted on: Aug 24 2018

In order to obtain personal jurisdiction over an individual defendant (a natural person) in a lawsuit, the plaintiff must serve the defendant with a copy of the summons.  CPLR 308 provides several different methods for service and many, but not all, methods are discussed below.

One method is personal delivery to the defendant. (CPLR 308 (1).)  When such “in hand” service is made, the defendant has twenty days to appear in the action (unless the time is extended).  (CPLR 320(a).)

Service can also be made by delivering the summons to someone of “suitable age and discretion” at the defendant’s “actual place of business, dwelling place or usual place of abode.”  (CPLR 308(2).)  Suitable age and discretion means that “[t]he person to whom delivery is made must objectively be of sufficient maturity, understanding, and responsibility under the circumstances so as to be reasonably likely to convey the summons to the defendant.”  (Nationwide Mutual Ins. Co. v. Kaufman, 896 F. Supp. 104 (E.D.N.Y. 1995).)  When this method is used a copy of the summons: must also be mailed to the defendant at his or her last known residence or actual place of business; in an envelope indicatimg that the mailing is “personal and confidential;” and, the envelope cannot indicate that the mailing is from an attorney or concerns a lawsuit against the defendant.  In addition, the delivery and mailing must occur within twenty days of one another.  Proof of service must be filed with the clerk of the court in which the action is pending within twenty days of the later of the delivery or mailing.  Service is deemed complete ten days after the filing of the proof of service. If service is made pursuant to CPLR 308(2), the defendant has twenty days to appear after the completion of service (unless the time is extended).

When service cannot be made “in hand” or by serving someone of “suitable age and discretion,” service can be made by “affixing” the summons to the door of the defendant’s actual place of business or usual place of abode and following mailing and filing procedures similar to those used with “suitable age and discretion” service. (CPLR 308(4).)  Service is deemed complete ten days after the filing of the proof of service. If service is made pursuant to CPLR 308(4), the defendant has twenty days to appear after the completion of service (unless the time is extended).

When a defendant fails to appear or plead, plaintiff may seek a default judgment.  (CPLR 3215(a).)  A plaintiff making an application for a default judgment must, among other things, submit proof of: (1) service of the summons and complaint; (2) the facts constituting the claim; (3) defendant’s default; and, (4) the amount due.  (CPLR 3215(f).)

These rules converged in First Federal Savings & Loan Assoc. v. Tezzi (2nd Dep’t August 22, 2018).   First Federal was a breach of contract action. Defendant was served by “affix and mail” service pursuant to CPLR 308(4) on November 24, 2009, and the affidavit of service was filed with the Westchester County Clerk on December 17, 2009 (more than 20 days after service).  Plaintiff obtained a default judgment on April 22, 2010 after defendant failed to appear.  Defendant, arguing that the affidavit of service was not timely filed pursuant to CPLR 308(4) and 3215, moved to vacate the default judgment more than 6 years later in October of 2016.  The plaintiff opposed the motion arguing that it attempted to timely file the affidavit of service by “mailing a copy … to the Westchester County Clerk on December 7, 2009.”  Supreme Court “sua sponte, deemed the affidavit of service timely filed, nunc pro tunc, and denied the defendant’s motion to vacate the default.”

On defendant’s appeal, the Appellate Division, Second Department “modified” Supreme Court’s order “on the facts and in the exercise of discretion, by deleting the provision thereof denying the defendant’s motion to vacate the default judgment, and substituting a provision granting the motion; and as so modified, the order is affirmed…and the time for the defendant to serve and file an answer is extended until 30 days after service upon her of a copy of this decision and order.”

The Second Department found that because the affidavit of service was not filed within 20 days of the later of the mailing or affixing, “service was never completed” and the “defendant’s time to answer the complaint had not yet started to run and, therefore, she could not be in default.  Because the “failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004, the Second Department agreed with Supreme Court “to deem the affidavit of service timely filed, sua sponte, pursuant to CPLR 2004.”

In analyzing the equities of its decision, the Second Department stated:

In granting this relief, however, the court must do so upon such terms as may be just, and only where a substantial right of a party is not prejudiced (see CPLR 2001). The court may not make such relief retroactive, to the prejudice of the defendant, by placing the defendant in default as of a date prior to the order, nor may a court give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur. Rather, the defendant must be afforded an additional 30 days to appear and answer after service upon her of a copy of the decision and order.  (Some citations and internal quotation marks omitted.)

TAKEAWAY

Failure to follow procedural rules, even in minor ways, could lead to very interesting results.

 

Tagged with: , ,

legal500
bnechmark
superlawyers
AVVO
Freiberger Haber LLP Footer Logo
Copyright ©2020 Freiberger Haber LLP | Disclaimer
Attorney advertisement | Prior results do not guarantee a similar outcome.
425 Broadhollow Road, Suite 417, Melville, NY 11747 | (631) 282-8985
10 Grand Central, 155 East 44th Street, 6th Floor, New York, NY 10017 | (212) 209-1005
Attorney Website by Zola Creative