WHAT IS A CONSENT TO SERVICE FOR JURISDICTION PURPOSES

NEW YORK DANGEROUS LLC v. LIBROT, 2021 NY Slip Op 50584 - NY: Supreme Court June 24, 2021:

"Plaintiffs served Librot with the summons in this action by e-filing the summons on the New York courts' NYSCEF e-filing system. Librot argues that this was not proper service, and therefore that the action is subject to dismissal under CPLR 3211(a)(8) for lack of personal jurisdiction. This court agrees.

New York State ordinarily requires that service on a natural person be effected through a form of personal delivery: whether directly to the defendant or to the defendant's designated agent (see CPLR 308[1], [3]); by leave-and-mail (see CPLR 308[2]); or by nail-and-mail (see CPLR 308[4]). Absent the agreement of the party to be served, resort to service through e-filing on NYSCEF—like other methods of expedient service—requires court authorization. (See CPLR 308[5]; 22 NYCRR 202.5-b[f][1]; accord Wimbledon Financing v Laslop 169 AD3d 550, 550 [1st Dept 2019].) Plaintiffs did not obtain either Librot's agreement or court authorization here.

Plaintiffs argue that Librot has consented to service by e-filing in this action because he previously consented to e-filing in the first case. As this court has already held (see NYSCEF No. 25), that argument is without merit. Consent to e-filing generally must be obtained separately in each new action involving a given party. (See 22 NYCRR] 202.5-b[b][2][i].) And a party must additionally consent to e-filed service of initiating documents, in particular. (See 22 NYCRR 202.5-b[f][1].)

Plaintiffs also argue that Librot has waived his personal-jurisdiction defense by appearing in this action. This court disagrees. Librot has not filed a formal notice of appearance. Neither Librot's filing of a demand for the complaint, nor his later execution of adjournment stipulations, constituted an informal appearance. (See CPLR 3012[b] [demand for complaint]; Rich v Lefkovits, 56 NY2d 276, 278 [1982] [stipulations].) And Librot's sole other form of participation in this action before moving to dismiss was opposing plaintiffs' motion for default judgment, in part on jurisdictional grounds. (See NYSCEF No. 18 at 2.) Filing that affirmation was not the sort of participation in this action on the merits that might constitute an informal appearance—particularly since Librot is pro se. (See HSBC Bank USA v A & R Trucking Co., 66 AD3d 606, 607 [1st Dept 2009] [holding that defendant did not waive her jurisdictional objections by moving to vacate a default judgment on the ground of improper service].)"