The Second Department, reversing Supreme Court, determined Supreme Court properly deemed service complete despite the late filing of the affidavit of service, but further determined Supreme Court should not have denied defendant's motion to vacate the default judgment. Rather service should have been deemed complete when the court ruled on it and defendant should have been given 30 days from that point to file an answer:
Here, the affidavit of service was not filed within 20 days of either the mailing or affixing; thus, service was never completed … . Since service was never completed, the defendant's time to answer the complaint had not yet started to run and, therefore, she could not be in default … .
However, 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″… . Thus, we agree with the Supreme Court's determination to deem the affidavit of service timely filed, sua sponte, pursuant to CPLR 2004.
In granting this relief, however, the court must do so upon such terms as may be just, and only where a substantial right of a party is not prejudiced (see CPLR 2001 …). The court may not make such relief retroactive, to the prejudice of the defendant, by placing the defendant in default as of a date prior to the order… , “nor may a court give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur” … . Rather, the defendant must be afforded an additional 30 days to appear and answer after service upon her of a copy of the decision and order … . First Fed. Sav. & Loan Assn. of Charleston v Tezzi, 2018 NY Slip Op 05826, Second Dept 8-22-18
CIVIL PROCEDURE (ALTHOUGH SUPREME COURT PROPERLY DEEMED SERVICE COMPLETE DESPITE LATE FILING OF THE AFFIDAVIT OF SERVICE, DEFENDANT'S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN DENIED, RATHER DEFENDANT SHOULD HAVE BEEN GIVEN EXTRA TIME TO FILE AN ANSWER (SECOND DEPT))/CPLR 2004 (ALTHOUGH SUPREME COURT PROPERLY DEEMED SERVICE COMPLETE DESPITE LATE FILING OF THE AFFIDAVIT OF SERVICE, DEFENDANT'S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN DENIED, RATHER DEFENDANT SHOULD HAVE BEEN GIVEN EXTRA TIME TO FILE AN ANSWER (SECOND DEPT))