You are here: / / IF THE ORIGINAL PROCESS SERVER’S AFFIDAVIT OF SERVICE FAILS TO INCLUDE...

IF THE ORIGINAL PROCESS SERVER’S AFFIDAVIT OF SERVICE FAILS TO INCLUDE A STATEMENT THAT A MAILING IN COMPLIANCE WITH CPLR 308(2) WAS DONE, THE OMISSION CANNOT BE CURED BY AMENDMENT; THE AMENDED AFFIDAVIT SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the amended affidavit of the process server to add the mailing requirement should not have been accepted by the court. Failing to aver the complaint was mailed in the original affidavit cannot be cured by amendment:

CPLR 308(2) provides that personal service upon a natural person may be acquired “by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business” within 20 days. CPLR 308(2) requires strict compliance and the plaintiff has “the burden of proving, by a preponderance of the credible evidence, that service was properly effected” … .* * *

… [C]ertain defects in an affidavit of service, which are related to “a defendant’s substantial right to notice of the proceeding against him or her, . . . may not be corrected by an amendment” … . These defects include an erroneous address … and an erroneous mailing date … . The omission from an affidavit of service of a statement that a mailing in compliance with CPLR 308(2) was effectuated also is not amenable to correction pursuant to CPLR 305(c) … . Accordingly, the plaintiff’s amended affidavit of service should not have been considered. John Doe v Mesivtha, Inc., 2024 NY Slip Op 02172 Second Dept 4-24-24

Practice Point: A process server’s affidavit which does not include a statement that a mailing in compliance with CPLR 308(2) was done, the omission cannot be cured by amendment of the affidavit of service.

 

You might also like
Ownership Acquired by Adverse Possession Demonstrated
CONFUSION ABOUT THE EFFECT OF FINDING THE DEFENDANT NOT GUILTY BY VIRTUE OF THE JUSTIFICATION DEFENSE REQUIRED A NEW TRIAL, IF THE JUSTIFICATION DEFENSE APPLIES TO A HIGHER COUNT THERE CAN BE NO FURTHER CONSIDERATION OF ANY LESSER COUNT (SECOND DEPT).
Drug Treatment and Drug Testing Facilities Do Not Have a Duty to Provide the Test Results With a Disclaimer Indicating the Tests Were Done According to “Clinical,” Not “Forensic,” Standards—Here the “Clinical” Results Were Disseminated and Used In Court Proceedings
REVOLVER FOUND BY A PASSERBY SEVEN BLOCKS FROM THE CRIME SCENE SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ERROR DEEMED HARMLESS HOWEVER (SECOND DEPT).
Foreign Money Judgment Properly Enforced—Criteria Explained
More than One Possible Cause of Icy Condition Required Grant of Summary Judgment to Defendant
Where Deportation As a Result of a Guilty Plea Is Not Mentioned by the Court, Preservation of the Error Is Not Required
QUESTION OF FACT WHETHER THE ‘RECKLESS DISREGARD’ STANDARD APPLIES TO THIS POLICE-CAR TRAFFIC ACCIDENT CASE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF WAS INJURED WHEN A PIECE OF WIRE STRUCK HIS EYE WHEN HE WAS USING... A NOTICE OF VIOLATION FROM THE CITY TO THE ABUTTING PROPERTY OWNER REGARDING...