You are here: / / Time-Limit for Serving a Complaint Was Never Triggered Because the Summons...

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

 

You might also like
PLAINTIFF’S MOTION TO AMEND ITS REPLY TO A COUNTERCLAIM TO ADD THE STATUTE OF LIMITATIONS DEFENSE SHOULD HAVE BEEN GRANTED; THE PROPOSED AMENDMENT WAS NOT PALPABLY IMPROPER AND DEFENDANT SHOWED THERE WAS NO PREJUDICE BY NOT OPPOSING THE MOTION TO AMEND (SECOND DEPT).
THE EVIDENCE THE COMPLAINANT SUFFERED “SERIOUS PHYSICAL INJURY” FROM MULTIPLE STAB WOUNDS WAS LEGALLY INSUFFICIENT; CONVICTIONS REDUCED TO ATTEMPTED GANG ASSAULT, ASSAULT AND ROBBERY (SECOND DEPT).
FATHER, WHO LIVED IN FLORIDA, BROUGHT THIS PARENTAL ACCESS PETITION; FATHER INDICATED HE COULD NOT AFFORD TO TRAVEL TO NEW YORK; HE APPEARED SEVERAL TIMES VIRTUALLY; HE DID NOT APPEAR AT THE LAST COURT DATE, BUT HIS ATTORNEY WAS PRESENT; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION AS ABANDONED (SECOND DEPT).
INSTEAD OF DISMISSING THE PETITION FOR FAILURE TO INCLUDE A NECESSARY PARTY, SUPREME COURT SHOULD HAVE ORDERED THE PARTY SUMMONED PURSUANT TO CPLR 1001 (b) (SECOND DEPT).
THE CITY ORDERED PLAINTIFF TO REPAIR A WATER LEAK ON PLAINTIFF’S PROPERTY WHICH THE CITY CLAIMED CAUSED A SINK HOLE IN THE ABUTTING ROAD; PLAINTIFF PAID FOR EXCAVATING THE AREA AND FIXING THE ROAD; PLAINTIFF SUED THE CITY ALLEGING THERE WAS NO WATER LEAK AND THE CITY NEGLIGENTLY ORDERED HER TO REPAIR THE ROAD; THE NEGLIGENCE CAUSE OF ACTION WAS PROPERLY DISMISSED (NO SPECIAL RELATIONSHIP WITH PLAINTIFF), BUT THE UNJUST ENRICHMENT CAUSE OF ACTION BASED ON PLAINTFF’S PAYING FOR THE REPAIR OF THE PUBLIC ROAD SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
Child’s Out-of-Court Statements Corroborated by Child Abuse Expert/Hearsay Provided Adequate Basis for Finding of Abuse
Awareness of a Conflict of Interest for Eight Months Constituted a Waiver of Any Objection to Opposing Counsel
PURSUIT OF DEFENDANT, WHO RAN, HOLDING HIS WAISTBAND, WHEN POLICE TOLD HIM TO STOP, NOT JUSTIFIED, FIREARM AND DRUGS SHOULD HAVE BEEN SUPPRESSED.

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

Court Has the Discretion to Deny a Motion to Change Venue Where the Statutory... “Transacting Business” Criteria for Long-Arm Jurisdiction Met