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ALTHOUGH THE FAILURE TO FILE PROOF OF SERVICE IS NOT A JURISDICTIONAL DEFECT AND CAN BE CURED SUA SPONTE, HERE THE PLAINTIFFS DID NOT PROPERLY SEEK LEAVE TO EXCUSE THE FAILURE AND THE JUDGE DID NOT GRANT PLAINTIFFS LEAVE TO FILE A LATE PROOF OF SERVICE; THE SERVICE WHICH WAS ALLOWED TO STAND BY THE JUDGE WAS THEREFORE A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not granted plaintiffs leave to file late proof of service on defendant Joffe. Plaintiffs offered no excuse for the failure:

Supreme Court granted that branch of the plaintiffs’ motion which was for a declaration that Joffe was properly served with process pursuant to CPLR 308(2) and 313. The court did not acknowledge or address Joffe’s argument that the plaintiffs’ proof of service had not been filed with the court within the requisite time. The court recognized, but did not reach the merits of, that branch of the plaintiffs’ motion which was, in the alternative, pursuant to CPLR 306-b to extend the time to serve Joffe by 120 additional days. The court, in effect, denied the alternative branch of the plaintiffs’ motion on the ground that it was academic.

… CPLR 308(2) provides that “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.”

… [T]he failure to file timely proof of service does not constitute a jurisdictional defect … . Rather, “[t]he failure to file proof of service is a procedural irregularity . . . that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004” … .

Here, since the plaintiffs did not properly seek leave to excuse their failure to timely file proof of service, and the Supreme Court did not grant them leave to file proof of service beyond the statutory window (see CPLR 308[2]), the proof of service relating to Joffe was a nullity … . Under the circumstances, the court should have denied that branch of the plaintiffs’ motion which was for a declaration that Joffe was properly served with process pursuant to CPLR 308(2) and 313. Chunyin Li v Joffe, 2022 NY Slip Op 06227, Second Dept 11-9-22

Practice Point: The failure to file proof of service is not a jurisdictional defect and can be cured by the judge sua sponte. Here however the plaintiffs did not properly seek leave to excuse their failure to timely file proof of service and the judge did not grant plaintiffs leave to file late proof of service, rendering the service on the defendant (allowed to stand by the judge) a nullity.

 

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