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THE ORDER TO SHOW CAUSE REQUIRED SERVICE BY OVERNIGHT EXPRESS; THE ORDER TO SHOW CAUSE WAS SERVED BY PRIORITY MAIL; THE FAILURE TO COMPLY WITH THE SPECIFIED MANNER OF SERVICE DEPRIVED THE COURT OF JURISDICTION TO HEAR THE MOTION.

The First Department, reversing Supreme Court, determined plaintiff did not serve the order to show cause in the manner specified in the order. Therefore the court did not have jurisdiction to hear the motion and the order was vacated:

Despite the express provision requiring overnight express service, in the March 16, 2020, order to show cause, plaintiff served the order to show cause and related papers by Priority Mail, which only guarantees delivery in one to three days. Failure to comply strictly with the service provision of the order to show cause deprived the court of jurisdiction to hear the motion … . Therefore, the resulting July 15, 2020 order should be vacated. Colonial Funding Network, Inc. v Finley, 2023 NY Slip Op 05980, First Dept 11-21-23

Practice Point: If the order to show cause specifies the manner of service and service is not made in that manner, the court is deprived of jurisdiction to hear the motion.

 

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