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FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the failure to file a consent to change attorney form was not a reason to deny the motion brought by new counsel, and the motion to vacate plaintiff’s default should have been granted because the process server was not able to produce his log book:

CPLR 321(b)(1) provides that an attorney of record may be changed by filing a consent to change attorney signed by the retiring attorney and the party. Notice must be given to adverse parties. In this case, it appears that at the time the defendant’s motion for leave to renew and reargue was made, no consent to change attorney had been filed. A technical failure to comply with CPLR 321(b), however, does not render the acts of the new attorney a nullity … . In this case, the plaintiff claims no prejudice, and the consent to change attorneys was filed while the motion was still pending … . Thus, contrary to the plaintiff’s contention, the belated compliance with CPLR 321(b) was not a basis to deny the defendant’s motion … .

At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence … . The plaintiff failed to meet that burden. Where a process server has no independent recollection of events, a process server’s logbook may be admitted in evidence as a business record … . Here, however, the logbook was not produced in court or introduced in evidence. Thus, there was no evidence—other than the process server’s description of a business record not before the court, which the process server claimed he was unable to locate—to support the claim that service occurred at 7:05 p.m., when the person who allegedly received the papers was present to receive them. Sperry Assoc. Fed. Credit Union v John, 2018 NY Slip Op 02823, Second Dept 4-25-18

​CIVIL PROCEDURE (CONSENT TO CHANGE ATTORNEY, FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/ATTORNEYS  (CONSENT TO CHANGE ATTORNEY, FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/CONSENT TO CHANGE ATTORNEY (FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/EVIDENCE (VACATE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/SERVICE OF PROCESS (VACATE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/LOG BOOK (SERVICE OF PROCESS, VACATE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))

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