Court Has Mercy, Allows Untimely Proof of Service
June 10, 2019
In law, as in life, mistakes happen. Some are irreparable: Statute of repose expired? Too much denim? In these circumstances, the law affords the court no discretion for mercy. Other errors, however, must be forgiven. In a recent decision, Commercial Division Justice Andrew Borrok held that plaintiff’s inadvertent failure to file proof of substitute service within twenty days was a mere “procedural irregularity” that could be corrected.
In Furuya v. Parry (Index No. 158800/2018), plaintiff served defendant with a summons and complaint seeking funds pursuant to a holdover agreement. Service was effected pursuant to CPLR 308  by affixing a true copy of the papers to the door of defendant’s residence and mailing a copy to the same address. However, plaintiff did not file proof of service until 50 days later—30 days too late.
Defendant moved to dismiss the complaint for lack of personal jurisdiction based on plaintiff’s failure to timely file proof of service. The motion was denied.
The court explained that mere delay in filing proof of service pursuant to CPLR 308 was not a jurisdictional defect, but a procedural irregularity that may be corrected by the court nunc pro tunc. See Lancaster v Kindor, 98 AD2d 300, 306 [1st Dept 1984]. As the First Department explained, “the purpose of requiring filing of proof of service, along with the 10-day grace period, pertains solely to the time within which the defendant must answer, and does not relate to the jurisdiction acquired by service of the summons.” The law is the same in the Second Department. See Weininger v Sassower, 204 AD2d 715, 716 (1994).
Under CPLR §§ 2001 and 2004, the court found good cause and no prejudice to Defendant by accepting the untimely proof of service. The court’s analysis of good cause did not place much scrutiny on plaintiff’s culpability—plaintiff’s attorney submitted an affidavit stating he had intended to file the proof of service along with the amended complaint, but “cannot explain” why the documents were not filed, “except to surmise that I neglected to attach the document when e-filing.”
The court instead emphasized plaintiff’s prompt correction of the defect and the lack of prejudice to defendant: “If the filing of the proof of service is deemed timely, [defendant] will be in the same position as he would have been had the proof of service been filed within 20 days.” Notably, plaintiff’s claims were brought well within the statute of limitations, so dismissal would result in plaintiff filing a new action.
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