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].)"

NEW FORMS FOR E FILING

Judge Lawrence Marks issues Administrative Order 254-20 prescribing forms for use in electronic filing in New York Supreme Court through the New York State Courts Electronic Filing (NYSCEF) program.

The forms can be found at this link: AO 254-20

E FILING ELIMINATES EXCUSE FOR DEAFULT

E Filing is convenient but it also negates a lack of notice.

U.S. Bank, N.A. v Essaghof, 2019 NY Slip Op 08888, Decided on December 11, 2019, Appellate Division, Second Department:

"We agree with the Supreme Court's determination to deny the defendants' motion pursuant to CPLR 5015(a)(1). "A party seeking to vacate an order entered upon his or her failure to oppose a motion is required to demonstrate, through the submission of supporting facts in evidentiary form, both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion" (Bhuiyan v New York City Health & Hosps. Corp., 120 AD3d 1284, 1284; see CPLR 5015[a][1]; Kondrotas-Williams v Westbridge Enters., Inc., 170 AD3d 983, 985; Soto v Chelsea W26, LLC, 166 AD3d 1048, 1049). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" (Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 886; see Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705; New Century Mtge. Corp. v Chimmiri, 146 AD3d 893, 894). "The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default" (Option One Mtge. Corp. v Rose, 164 AD3d 1251, 1252; see Torres v Rely On Us, Inc., 165 AD3d 731, 733; GMAC Mtge., LLC v Guccione, 127 AD3d 1136, 1138). "Conclusory and unsubstantiated allegations of law office failure are not sufficient" (Torres v Rely On Us, Inc., 165 AD3d at 733 [internal quotation marks omitted]; see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 707; U.S. Bank N.A. v Barr, 139 AD3d 937, 937-938). "[M]ere neglect [*2]is not a reasonable excuse" (Torres v Rely On Us, Inc., 165 AD3d at 733 [internal quotation marks omitted]; see OneWest Bank, FSB v Singer, 153 AD3d 714, 716; JP Morgan Chase Bank, N.A. v Russo, 121 AD3d 1048, 1049).

In support of their motion, the defendants submitted an affirmation from their attorney, who explained that he had left for Florida on a two-week vacation for his wedding and honeymoon a day before the plaintiff served and filed its motion. Counsel asserted that, when he returned and checked his unread emails, the email to which the plaintiff's motion papers were annexed was not among his unread emails, and therefore he was "unaware that Plaintiff had filed [its] motion."

In opposition to the defendants' motion, the plaintiff submitted copies of numerous New York State Courts Electronic Filing (hereinafter NYSCEF) email notifications and alerts from the Supreme Court, Suffolk County, sent prior to the return date of the plaintiff's motion, demonstrating that at least five separate automated court notices concerning the plaintiff's motion filing had been emailed to the defendants' attorney prior to the return date of the plaintiff's motion, including one that was emailed more than two weeks after the defendants' attorney left for his two-week vacation. Absent any explanation that would take into account the email notification that arrived after he had returned to the office, and his failure to provide the exact details concerning when he became aware of the default and precisely what he did upon learning of the order granting the plaintiff's unopposed motion (cf. Diamond v Leone, 173 AD3d 686, 687-688), the defendants' claim of law office failure was insufficient to demonstrate a reasonable excuse for their default (see Option One Mtge. Corp. v Rose, 164 AD3d at 1252)."

NASSAU COUNTY EXPANSION OF CONSENSUAL E FILING

By notice dated April 3, 2018, an announcement was made regarding an update on the progress of the New York State Courts' Electronic Filing System ("NYSCEF"). As authorized under Chapter 237 of the Laws of 215, expansion of the consensual e-filing program has been proposed by the District Administrative Judge of the 10th Judicial District and the Nassau County Clerk lo take effect May 23, 2018. As of the effective date, the authorization will be to expand the consensual e-filing program to include newly filed matrimonial and CPLR Article 78 proceedings.

DOMESTIC VIOLENCE - NEW TOOL IN SUFFOLK COUNTY

 Newsday reports:

"Victims of domestic violence seeking temporary orders of protection in Suffolk can submit requests electronically and speak to judges via video conference under a new program, officials said Thursday. With the help of advocates and attorneys, individuals who suffer from domestic abuse can ask for orders of protection from remote sites, including shelters, hospitals, senior centers, and the First Precinct in West Babylon."

EXPEDITE A CONFESSION OF JUDGMENT IN NEW YORK COUNTY?

I just discovered it is not that easy.

In New York County, confession of judgments are subject to mandatory e-filing. However, once you e file, an index number will not be assigned until your papers are reviewed by a clerk. But the backlog is several months.

The clerks will allow you to expedite the filing by coming in person with your e filed payment notice and confirmation notice together with original papers. However, there is a six week waiting period - you can come down in person six weeks after the date you e filed to attempt to expedite.

E RECORDING IN NASSAU COUNTY

Although not yet on the Coiunty Clerk's website, this notice was forwarded to me: