You are here: / / Failure to File Proof of Service Is a Procedural Irregularity Which Can...
,

Failure to File Proof of Service Is a Procedural Irregularity Which Can Be Cured

The Second Department reversed Supreme Court, finding that plaintiff’s failure to file proof of service of a complaint was a procedural irregularity which had been promptly cured.  The defendant (Hernandez), who was in default, was given 30 days to appear and answer:

The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004 … . Here, in light of the plaintiff’s prompt action in moving to correct the irregularity following the denial of his motion for leave to enter a default judgment and the lack of prejudice to Hernandez, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to deem the filing of proof of service on Hernandez timely nunc pro tunc … . However, contrary to the plaintiff’s contention, a court may not grant such relief retroactive to Hernandez’s prejudice by placing him in default as of a date prior to the order … . In other words, service will not be deemed complete …, as the plaintiff argues (see CPLR 308[4]). Rather, Hernandez must be afforded an additional 30 days after service upon him of a copy of this decision and order to appear and answer … . Khan v Hernandez, 2014 NY Slip Op 07985, 2nd Dept 11-19-14

 

You might also like
Question of Fact about Implied Physician-Patient Relationship In Malpractice Action
Questions of Fact Raised About Whether Student Assumed the Risk of Injury from Indoor Soccer Practice–Relevant Law Discussed In Some Depth
THE SURGICAL PROCEDURE FOR WHICH THERE ALLEGEDLY WAS NO CONSENT WAS NOT DEMONSTRATED TO BE THE PROXIMATE CAUSE OF THE CLAIMED INJURIES, THEREFORE THE LACK OF INFORMED CONSENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
ELEVATOR REPAIR COVERED UNDER LABOR LAW 240(1), STATIONARY LADDER WAS A SAFETY DEVICE, QUESTION OF FACT WHETHER THE LADDER AFFORDED ADEQUATE PROTECTION.
INFECTING A VICTIM WITH HIV CONSTITUTES “PHYSICAL INJURY” WITHIN THE MEANING OF RISK FACTOR 1 RE: THE SEX OFFENDER REGISTRATION ACT; HOWEVER THE FINDING THAT DEFENDANT IN FACT INFECTED THE VICTIM WITH HIV WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE (SECOND DEPT).
PLAINTIFF’S DECEDENT WAS TAKEN TO THE DEFENDANT HOSPITAL’S EMERGENCY ROOM AND WAS OPERATED ON BY AN INDEPENDENT SURGEON; PLAINTIFF DEMONSTRATED THE EMERGENCY ROOM EXCEPTION APPLIED AND THE HOSPITAL WAS VICARIOUSLY LIABLE FOR THE SURGEON’S ALLEGED MALPRACTICE (SECOND DEPT).
Defendant Company’s Failure to Keep Current Address On File With Secretary of State Was Not an Adequate Excuse for Default
ONLY CONTRACTORS AND OWNERS AND THEIR AGENTS CAN BE LIABLE UNDER LABOR LAW 240(1) AND 241(6); HERE DEFENDANT DEMONSTRATED IT WAS NOT AN AGENT FOR ANY POTENTIALLY LIABLE PARTY BECAUSE IT EXERCISED NO SUPERVISORY CONTROL OVER THE WORKSITE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Owners’ Intent, at the Time Plaintiff Was Injured, to Use the Property... Filing of Article 78 Petition Itself Constituted a Demand that Respondent Perform...