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TIME TO SERVE DEFENDANT, WHO LIVED IN INDIA, IN THIS FORECLOSURE ACTION WAS PROPERLY EXTENDED IN THE INTEREST OF JUSTICE BUT SUPREME COURT SHOULD NOT HAVE DIRECTED AN ALTERNATIVE METHOD OF SERVICE, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the time for serving defendant (Kothary), who lived in India, in this foreclosure action was properly extended in the interest of justice pursuant to CPLR 306-b. But Supreme Court should not have directed an alternative method of service (service upon the defendant’s attorney) pursuant to CPLR 308 (5):

… [W]e agree with the Supreme Court’s determination granting, in the interest of justice, that branch of the plaintiff’s motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon Kothary. The plaintiff established, among other things, that the action was timely commenced, and that service was timely attempted and was perceived by the plaintiff to have been within the 120-day period but was subsequently found to have been defective … . Additionally, the plaintiff demonstrated that it has a potentially meritorious cause of action, and that there was no identifiable prejudice to Kothary as a consequence of the delay in service … . …

However, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was pursuant to CPLR 308(5) to direct an alternative method for service of process by permitting service upon Kothary’s attorney. “CPLR 308(5) vests a court with discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308(1), (2), and (4) are impracticable” … . “[A] plaintiff seeking to effect expedient service must make some showing that the other prescribed methods of service could not be made” … . Here, at the hearing, Kothary provided the address where he resides in New Delhi … , and the plaintiff failed to submit any evidence that effectuating service in India by any of the authorized methods would have been unduly burdensome … . “That [Kothary] resided in a foreign country did not, by itself, relieve the plaintiff of [its] obligation to make a reasonable effort to effectuate service in a customary manner before seeking relief pursuant to CPLR 308(5)” … . JPMorgan Chase Bank, N.A. v Kothary, 2019 NY Slip Op 08832, Second Dept 12-11-19

 

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