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PLAINTIFF DID NOT SHOW DUE DILIGENCE IN ASCERTAINING THE NAME OF THE PARTY REFERRED TO AS “JOHN DOE” IN THE COMPLIANT RENDERING THE ACTION TIME-BARRED; ALTHOUGH THE COURT PROPERLY DEEMED PROOF OF SERVICE OF THE COMPLAINT AGAINST THE NAMED PARTY TIMELY FILED NUNC PRO TUNC, THE DEFAULT JUDGMENT AGAINST THE NAMED PARTY SHOULD NOT HAVE BEEN GRANTED RETROACTIVELY ONCE THE DEFECT WAS CURED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined plaintiff should not have been allowed to substitute the party’s name (here Esther Shaskos) for the “John Doe” named in the complaint because the plaintiff did not demonstrate it exercised due diligence to timely ascertain Esther’s identity. Therefore the complaint as against Esther was time-barred. As for the complaint against Elliot Shaskos, who was named in the complaint, the proof of service was never filed. Although the filing failure is not a jurisdictional defect and therefore did not preclude ruling the proof of service timely filed nunc pro tunc, the default judgment against Elliot should not have been granted retroactively when the defect was cured. Elliot was given the opportunity to answer the complaint:

Supreme Court should not have granted that branch of the plaintiff’s motion which was for leave to amend the caption to substitute Esther for the defendant “John Doe.” The court erred in applying the “John Doe” designation authorized by CPLR 1024 and the relation-back doctrine of CPLR 203(c) to bar application of the statute of limitations, because the plaintiff failed to establish that it “made diligent efforts to ascertain the unknown party’s identity prior to the expiration of the statute of limitations” … . …

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 … . … Supreme Court properly granted that branch of the plaintiff’s motion which was to deem proof of service to have been timely filed nunc pro tunc. 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 a defendant, by placing the defendant in default as of a date prior to the orde … . Accordingly, the court should have granted that branch of the Shashos’ cross motion which was for leave to serve and file an answer, and denied that branch of the plaintiff’s motion which was for leave to enter a default judgment against Elliot (see CPLR 320[a]). Wilmington Trust, N.A. v Shasho, 2021 NY Slip Op 04632, Second Dept 8-4-21

 

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