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].)"

DELAY IN SERVING DEFENDANT

Wells Fargo Bank, NA v Barrella, 2018 NY Slip Op 07486, Decided on November 7, 2018, Appellate Division, Second Department:

On November 24, 2009, the plaintiff's former counsel, Steven J. Baum, P.C., commenced this residential foreclosure action by filing the summons and complaint with the Westchester County Clerk. In February 2012, the plaintiff retained new counsel, who discovered that the plaintiff's former counsel had failed to serve, among others, the defendant Joseph N. Barrella (hereinafter Joseph), as administrator, heir, and distributee of Anastasia Barrella, the surviving spouse of Joseph A. Barrella.

On June 22, 2015, approximately 5½ years after commencing the action, the plaintiff effectuated personal service upon Joseph by serving a person of suitable age and discretion at his actual place of business. On or about January 8, 2016, more than six months after serving Joseph [*2]and after the expiration of the statute of limitations, the plaintiff moved, inter alia, pursuant to CPLR 306-b to extend, nunc pro tunc, its time to serve Joseph. Joseph, together with the defendants Russell Barrella (hereinafter Russell), as heir and distributee of Anastasia Barrella, and Gail Fatato, as heir and distributee of Anastasia Barrella (hereinafter collectively the defendants), opposed the motion and cross-moved pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against them. The Supreme Court, relying upon CPLR 306-b's interest of justice provision, granted that branch of the plaintiff's motion which was to extend its time to serve Joseph and denied the defendants' cross motion. The defendants appeal and we modify.

As relevant here, CPLR 306-b provides that "[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action." Further, "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." " Good cause' and interest of justice' are two separate and independent statutory standards" (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31; see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104). "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service" (Bumpus v New York City Tr. Auth., 66 AD3d at 31-32; see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106). "If good cause for an extension is not established, courts must consider the interest of justice' standard of CPLR 306-b" (Bumpus v New York City Tr. Auth., 66 AD3d at 32), which "requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). "Unlike an extension request premised on good cause, a plaintiff [seeking an extension in the interest of justice] need not establish reasonably diligent efforts at service as a threshold matter" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). "However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the statute of limitations, the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; see Moundrakis v Dellis, 96 AD3d 1026, 1027; Bumpus v New York City Tr. Auth., 66 AD3d at 32). "No one factor is determinative—the calculus of the court's decision is dependent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106).

Here, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was to extend its time to serve Joseph. The plaintiff failed to establish that it exercised reasonably diligent efforts in attempting to effect proper service of process upon Joseph and, thus, failed to show good cause (see Hobbins v North Star Orthopedics, PLLC, 148 AD3d 784, 787-788; Loza v Alluri, 94 AD3d 824, 825). Further, the plaintiff failed to establish that an extension of time was warranted in the interest of justice (see Hobbins v N. Star Orthopedics, PLLC, 148 AD3d at 787-788; Loza v Alluri, 94 AD3d at 825). Where the plaintiff's delay in serving a defendant is protracted, and the defendant has no notice of the action for a protracted period of time, an inference of substantial prejudice arises (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 107; see also Ludemann v Maisel, 292 AD2d 428). The plaintiff failed to rebut the inference of substantial prejudice that arose due to its protracted delay in serving Joseph, as it failed to come forward with any proof that Joseph had notice of this action prior to being served more than 5½ years after the action was commenced (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 107; Ludemann v Maisel, 292 AD2d 428; cf. Jhang v Nassau Univ. Med. Ctr., 140 AD3d 1018, 1019-1020). Moreover, the plaintiff failed to explain its more than six-month delay in moving for relief pursuant to CPLR 306-b after it effectuated service upon Joseph (see Redman v South Is. Orthopaedic Group, P.C., 78 AD3d 1147, 1148; cf. Fernandez v Morales Bros. Realty, Inc., 110 AD3d 676, 677). Under theses circumstances, the plaintiff failed to establish its entitlement to an extension of time to serve Joseph under the interest of justice standard (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 107), and its motion should have been denied."

MORE ON VACATING DEFAULT

Nationstar Mtge., LLC v Dekom, 2018 NY Slip Op 03533, Decided on May 16, 2018, Appellate Division, Second Department:

"We agree with the Supreme Court's rejection of the defendant's claim of lack of personal jurisdiction. A process server's affidavit of service constitutes prima facie evidence of [*2]proper service (see Summitbridge Credit Invs., LLC v Wallace, 128 AD3d 676; JPMorgan Chase Bank, N.A. v Todd, 125 AD3d 933). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" (Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719, 719 [internal quotation marks omitted]; see Bank of N.Y. v Samuels, 107 AD3d 653). Affix and mail service pursuant to CPLR 308(4) may be used only where service under CPLR 308(1) by personal delivery or CPLR 308(2) by delivery to a person of suitable age and discretion cannot be made with due diligence (see CPLR 308[4]; Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759, 759-760; Estate of Waterman v Jones, 46 AD3d 63, 65).

The term "due diligence," which is not defined by statute, has been interpreted and applied on a case-by-case basis (see Estate of Waterman v Jones, 46 AD3d at 66). As a general matter, the "due diligence" requirement may be met with "a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times" (id.; see Deutsche Bank Natl. Trust Co. v White, 110 AD3d at 760). In this case, the plaintiff submitted affidavits from the process server which demonstrated that four visits were made to the defendant's residence at different times when the defendant could reasonably have been expected to be found at home. The process server also described the means she used to verify the defendant's residential address, and described her unsuccessful attempt to ascertain the defendant's place of employment. We agree with the Supreme Court that the affidavits constituted prima facie evidence that the due diligence requirement was satisfied (see JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 777-778). The affidavits also constituted prima facie evidence that the process server properly affixed a copy of the summons and complaint to the door of the defendant's residence, and mailed a copy to the residence by first class mail. Contrary to the defendant's contention, he failed to rebut the presumption of proper service arising from the process server's affidavits. Further, the summons contained statutorily mandated language warning the defendant that the failure to serve an answer to the complaint may result in a default judgment and advising him to speak to an attorney (see generally RPAPL 1320).

We agree with the Supreme Court's denial of the defendant's motion, in effect, to vacate his default in answering, and his motion to vacate the default judgment and/or stay its enforcement, since he failed to proffer a reasonable excuse for his default (see Wells Fargo Bank, N.A. v Mazzara, 124 AD3d 875, 875, citing Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141). In view of the lack of a reasonable excuse, it was unnecessary for the Supreme Court to consider whether the defendant demonstrated the existence of a potentially meritorious defense (see Wells Fargo Bank, N.A. v Mazzara, 124 AD3d at 875)."

ESTABLISHING IMPROPER SERVICE WHEN SEEKING TO VACATE A DEFAULT JUDGMENT

U.S. Bank, N.A. v Cepeda, 2017 NY Slip Op 07767, Decided on November 8, 2017, Appellate Division, Second Department:

"The plaintiff commenced this action to foreclose a mortgage. The defendant Raymond Cepeda (hereinafter the homeowner) failed to appear or answer the complaint. A judgment of foreclosure and sale was subsequently entered upon his default in answering. The homeowner moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale for lack of personal jurisdiction. The homeowner asserted that the plaintiff did not exercise due diligence in attempting to make personal service on him before resorting to affix and mail service pursuant to CPLR 308(4). The Supreme Court granted the homeowner's motion, vacated the judgment of foreclosure and sale and, sua sponte, in effect, directed the dismissal of the complaint. We reverse.

Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with "due diligence" (CPLR 308[4]; see Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759, 759-760; Estate of Waterman v Jones, 46 AD3d 63, 65). The term "due diligence," which is not defined by statute, has been interpreted and applied on a case-by-case basis (see Estate of Waterman v Jones, 46 AD3d at 66).

Here, the affidavit of the process server demonstrated that three visits were made to the homeowner's residence, each on different days and at different times of the day. The process server also described in detail his unsuccessful attempt to obtain an employment address for the [*2]homeowner, including interviewing a neighbor. Under these circumstances, the Supreme Court improperly concluded that the due diligence requirement was not satisfied (see Lasalle Bank N.A. v Hudson, 139 AD3d 811, 811; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1048; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 777-778; Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902; Lemberger v Khan, 18 AD3d 447, 447-448)."

OPENING DEFAULT FOR LACK OF SERVICE

US Bank N.A. v Ramos, 2017 NY Slip Op 06315, Decided on August 23, 2017, Appellate Division, Second Department:

""Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589; see Washington Mut. Bank v Huggins, 140 AD3d 858, 859). "Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing" (U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155 [citation omitted]; see Bank of Am., N.A. v Tobing, 145 AD3d 941, 942; Machovec v Svoboda, 120 AD3d 772, 773).

Here, the affidavits of the plaintiff's process server constituted prima facie evidence that the defendants were properly served pursuant to CPLR 308(2) (see Central Mtge. Co. v Ward, 127 AD3d 803, 803; Roberts v Anka, 45 AD3d 752, 753-754). Contrary to the defendants' contention, their submissions failed to rebut the presumption of proper service arising from the process server's affidavit as to service upon Ramos. While the defendants and a neighbor, in sworn affidavits, denied knowledge of a person named "Alicea Ramos," and asserted that the defendants were the only adults living at the subject property, they did not rebut the sworn allegation of the process server that a person fitting the physical description of "Alicea Ramos" was present at the subject property at the time and accepted service on behalf of Ramos (see Washington Mut. Bank v Huggins, 140 AD3d at 859; Bank of N.Y. v Espejo, 92 AD3d 707, 708; Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825; cf. Wachovia Bank, N.A. v Greenberg, 138 AD3d 984, 985). Thus, a hearing to determine the validity of service of process upon Ramos was not warranted.

Medrano, however, demonstrated her entitlement to a hearing on the issue of service. Medrano's sworn denial that she resided at the premises in New Hyde Park where service upon her allegedly was made, combined with evidence supporting such claim, was sufficient to rebut the presumption of proper service (see U.S. Bank, N.A. v Tauber, 140 AD3d at 1155; Central Mtge. Co. v Ward, 127 AD3d at 803-804; Lazarre v Davis, 109 AD3d 968, 969; Goralski v Nadzan, 89 AD3d 801, 801). Inasmuch as neither the evidence submitted by the defendants nor the evidence relied upon by the plaintiff is dispositive on the issue of whether service on Medrano at the address in New Hyde Park was proper under CPLR 308(2), a hearing is warranted. Thus, we remit the matter to the Supreme Court, Nassau County, for a hearing to determine whether Medrano was properly served and, thereafter, for a new determination of those branches of the defendants' motion which were to vacate her default and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction (see U.S. Bank, N.A. v Tauber, 140 AD3d at 1156; Goralski v Nadzan, 89 AD3d at 802), and, if warranted, a determination of that branch of the plaintiff's cross motion which was pursuant to CPLR 306-b to extend its time to serve Medrano."