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Time-Limit for Serving a Complaint Was Never Triggered Because the Summons with Notice Was Filed But Not Yet Served at the Time Defendants Served a Notice of Appearance and Demand for a Complaint

The Second Department reversed Supreme Court finding that the time-limit associated with a notice of appearance and a demand for a complaint was never triggered because the notice of appearance and demand for a complaint were made before defendants were served with the summons with notice (the summons with notice was filed but never served here):

The plaintiffs commenced this action by filing a summons with notice. It is undisputed that the summons with notice was never served on the defendants… . * * *

An action may be commenced “by filing a . . . summons with notice” (CPLR 304[a]…). “Service of the . . . summons with notice . . . shall be made within one hundred twenty days after the commencement of the action or proceeding” (CPLR 306-b…). “If the complaint is not served with the summons, the defendant may serve a written demand for the complaint” (CPLR 3012[b]). “Service of the complaint shall be made within twenty days after service of the demand” (id.). “If no demand is made, the complaint shall be served within twenty days after service of the notice of appearance” … . “The court upon motion may dismiss the action if service of the complaint is not made as provided in this subdivision” … .

As this Court has previously recognized, “[n]o provision is made for an appearance or a demand for a complaint before the summons is served” … . A demand for a complaint pursuant to CPLR 3012(b) prior to service of the summons is premature and does not invoke the time limitations of CPLR 3012(b) … .

Here, since the summons with notice had never been served, the notice of appearance and demand for a complaint was a nullity and the 20-day period within which the complaint had to be served pursuant to CPLR 3012(b) had not begun to run … . Accordingly, the Supreme Court did not have the authority to dismiss the action for failure to timely serve a complaint pursuant to CPLR 3012(b) … . Ryan v High Rock Dev LLC, 2015 NY Slip Op 00519, 2nd Dept 1-21-15

 

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