Summons in New York

What Is a Summons?

Background

It is a fundamental rule in this State that “[a]n action is commenced and jurisdiction acquired by service of a summons.” (Civ. Prac. Law & Rules, § 304; Fattarusso v. Levco Am. Imp. Corp., 144 A.D.2d 626, 626, 535 N.Y.S.2d 62, 63 [1988].) Due process requires that a defendant receive adequate notice of the pending action and is granted an opportunity to be heard in a proceeding. (Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-14 [1950].)

How to Structure the Motion

Personal service upon a natural person shall be made by any of the following methods:

by delivering the summons within the state to the person to be served; or
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; or
by delivering the summons within the state to the agent for service of the person to be served; or
where service under points one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by mailing the summons by first class mail to the person to be served at his or her last known residence.

(Civ. Prac. Law & Rules, § 308.)

“Proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing.” (Id.) However, “failure to file a timely proof of service is a curable procedural irregularity.” (Zareef v. Lin Wong, 61 A.D.3d 749 [2nd Dept. 2009]; Bank of New York v. Schwab, 97 A.D.2d 450 [2nd Dept. 1983]; Marazita v. Nelbach, 91 A.D.2d 604 [2nd Dept. 1982].)

“New York courts have not adopted a per se rule as to what constitutes ‘due diligence’ under Section 308. Rather, whether attempts to effectuate service constitute due diligence is determined on a case by case basis.” (Allstate Ins. Co. v. Rozenberg, 771 F. Supp. 2d 254, 261 [E.D.N.Y. 2011].)

Response

A default judgment rendered without personal jurisdiction over a defendant is a nullity and must be unconditionally vacated. (Hossain v. Fab Cab Corp., 57 A.D.3d 484, 485, 868 N.Y.S.2d 746 [2nd Dept. 2008].) The issue of jurisdiction must be determined before the court may consider any other basis for the relief sought or the merits of any defenses. (Citibank N.A. v. Keller, 133 A.D.2d 63, 518 N.Y.S.2d 409 [2nd Dept 1987].) The fact that actual notice of proceedings was acquired by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court. (Macchia v. Russo, 67 N.Y.S.2d 591 [1986]; Williams v. DRBX Holdings, 914 N.Y.S.2d 895 [1st Dept. 2011]; Lowney v. New York State Dept. of Human Rights, 889 N.Y.S.2d 463 [1st Dept. 2009].)

Where “physical delivery of a copy of the summons to a person of suitable age and direction was not made at defendant’s actual place of business, dwelling place or usual place of abode,” the action must be dismissed, even where the defendant has not explicitly moved to dismiss. (Cortese v. Panzanella, 32 Misc. 3d 507, 509 [Sup. Ct. 2011].) “Personal delivery” means “in-hand delivery,” and a default judgment based upon any other form of service of the summons is subject to the ameliorative provisions of Section 317 of Civil Practice Law and Rules. (Nat’l Bank of New York v. Grasso, 79 A.D.2d 871, 434 N.Y.S.2d 553 [1980].)

“It is well established that a process server’s sworn affidavit of service constitutes prima facie evidence of proper service. (Wells Fargo Bank, N.A. v. McGloster, 48 A.D.3d 457, 849 N.Y.S.2d 784 [2nd Dept. 2008].) Bare conclusory and unsubstantiated denials of receipt of process are insufficient to rebut the presumption of proper service created by the affidavit of the plaintiff’s process server and to require a traverse hearing. (Irwin Mtg. Corp. v. Devis, 72 A.D.3d 743, 898 N.Y.S.2d 854 [2nd Dept. 2010].)

The Court’s Decision

A court’s application of Section 317 of Civil Practice Law and Rules to relieve a party from a default judgment is discretionary, but such relief will generally be granted. (Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., 67 N.Y.2d 138, 492 N.E.2d 116 [1986].) “A defendant who meets the requirements of [CPLR 317] normally will be entitled to relief, although relief is not automatic, as the section states that a person meeting its requirements ‘may’ be allowed to defend the action.” (Id.)

Courts have broad power to devise alternative methods of service adapted to the particular facts of the case before them when statutorily governed methods are unavailable. (Dobkin v. Chapman, 21 N.Y.2d 490, 498 [1968].)

Timeline

“A person served with a summons other than by personal delivery to him or to his agent for service… who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense.” (Civ. Prac. Law & Rules, § 317; Olivaria v. Lin & Sons Realty, Corp., 84 A.D.3d 423, 922 N.Y.S.2d 337 [1st Dept. 2011].)