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THE WRONG MAILING DATE IN AN AFFIDAVIT OF SERVICE CANNOT BE CORRECTED IN AN AMENDED AFFIDAVIT; MATTER REMITTED FOR A HEARING ON DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting for a hearing, determined a mistake in an affidavit of service of the summons and complaint (wrong mailing date) could not be corrected by an amended affidavit. Therefore a hearing on defendant’s motion to dismiss for lack of personal jurisdiction was necessary:

… [S]imilar to an erroneous address contained in an affidavit of service … , an erroneous mailing date “affects a defendant’s substantial right to notice of the proceeding against him or her, and may not be corrected by an amendment” … . Here, the second amended affidavit of service attempted to correct the admitted erroneous mailing date contained in the original affidavit of service and the first amended affidavit of service, and therefore should not have been considered … . HSBC Bank USA, N.A. v Rini, 2023 NY Slip Op 03856, Second Dept 7-19-23

Practice Point: A wrong address or a wrong mailing date in an affidavit of service cannot be corrected by an amended affidavit.

 

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