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FAILURE TO FILE PROOF OF SERVICE WITHIN TWENTY DAYS OF DELIVERY OR MAILING OF THE SUMMONS IS NOT A JURISDICTIONAL DEFECT WHICH DEPRIVES THE COURT OF JURISDICTION OVER THE SERVED PARTY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the failure to file proof of service within twenty days of delivery or mailing of the summons does not negate the validity of the service, i.e., the failure to file does not deprive the court of jurisdiction over the defendant:

“Where, as here, service was made pursuant to CPLR 308(2), ‘proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later,’ and ‘service shall be complete ten days after such filing'” … . “Nevertheless, [t]he [*2]purpose of requiring filing of proof of service, along with the 10-day grace period, pertains solely to the time within which a defendant must answer, and does not relate to the jurisdiction acquired by service of the summons” … . * * *

… [T]he defendants failed to rebut the presumption of proper service … which was established by the plaintiff’s process server’s affidavit … . Contrary to the defendants’ contention, the plaintiff’s “failure to timely file proof of service [wa]s a mere procedural irregularity, not a jurisdictional defect” … .Palma v Apatow, 2024 NY Slip Op 04465, Second Dept 9-18-24

Practice Point: Failure to file proof of service of the summons within twenty days does not invalidate the service.

 

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