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DEFENDANT RAISED A QUESTION OF FACT WHETHER THE ADDRESS AT WHICH SERVICE OF PROCESS WAS ATTEMPTED WAS DEFENDANT’S ACTUAL PLACE OF BUSINESS; AN AFFIDAVIT OF SERVICE MAY NOT BE AMENDED TO CURE AN ERRONEOUS ADDRESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s affidavit demonstrated that the address at which service of process was made was not his business address and the affidavit of service could not be amended to cure the address-error:

… [A]n affidavit submitted by [defendant] Harooni … was sufficient to demonstrate that the address where service was alleged to have been effected in the affidavit of service … , was not in fact the address of Harooni’s ‘actual place of business’ (CPLR 308[2] …). … Pursuant to CPLR 305(c), a court, ‘[a]t any time, in its discretion and upon such terms as it deems just, . . . may allow any . . . proof of service of a summons to be amended, if a substantial right of a party against whom the summons is issued is not prejudiced’ … . An ‘erroneous address’ contained in an affidavit of service affects a defendant’s substantial right to notice of the proceeding against him or her, and may not be corrected by an amendment …”. Jampolskaya v Ilona Genis, MD, P.C., 2022 NY Slip Op 03104, Second Dept 5-11-22

Practice Point: An affidavit of service may be amended, but not to correct the wrong address.

 

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