REMEMBER COMMENCEMENT AND SERVICE ARE TWO DIFFERENT THINGS

Chief Administrative Judge Marks released a Memorandum yesterday announcing that, beginning Monday, May 25, "e-filing through the NYSCEF system -- including the filing of new non-essential matters -- will be restored in those counties of the state that have not yet met the benchmarks required" under the Governor's reopening plan, including those in New York City and Long Island.

But have a process server ready to serve in quarantine times because pursuant to CPLR 306-b service of a summons and complaint must be made within 120 days after the commencement of the action, which the court, upon motion, may in its discretion and "upon good cause shown or in the interest of justice, extend the time for service" (CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 101 [2001]; Chan v Zoubarev, 157 AD3d 851 [2018]). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service Leader v Maroney, Ponzini & Spencer, supra at 105-106). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105) including the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (see Bumpus v New York City Transit Auth.,, 66 AD3d 26, 32 [2009)]).

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."

NEW NOTICE IN DIVORCE ACTIONS

 
"By Administrative Order A/O/0004/16, New and Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective January 25, 2016. These form revisions are required by two legislative enactments last year: L. 2015 c. 269 (the Maintenance Guidelines Law which amended statutory provisions regarding temporary spousal maintenance, established formulae and procedures for setting post-divorce (final) maintenance) and L. 2015 c. 387 (the law as to treatment of maintenance in child support calculations). See http://www.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml"

NEW YORK - CHANGE IN MATRIMONIAL ORDERS

A week or so ago I mentioned the new change in the rules regarding automatic orders in matrimonial actions. A few days ago, I received the following email from the Matrimonial Committee of the NCBA:

"Dear Committee Members:

I am attaching what seems to be an amendment to the Uniform Rules which indicates some changes to the automatic orders. It indicates that violation of the orders “may” be deemed a contempt of court. It also changes the Notice on the face of the Summons. While I am of the opinion that contempt does not properly lie for a violation of a court rule where the order was not actually issued by court or record, this is the rule change. ........... According to the documents, the Rule actually changed “effective immediately” as contained in the NY Register of January 30, 2013.” The OCA website in the Rules section does not contain this amendment. I have several calls in to OCA to confirm the change given its lack of reference on the site. I have not yet heard back but will keep everyone posted.

Notably, the Court of Appeals in Gair v Peck, held “the Appellate Divisions cannot make substantive law by rules”— Can the Administrative Judge?"