Opinion
1096/04.
Decided on April 12, 2004.
Nicolini, Paradise, Ferretti Sabella for plaintiff.
Dean Cofield, defendant pro se.
The plaintiff's unopposed motion pursuant to UDCA § 411, for an order granting the two-and-a-half year late filing of the summons and complaint nunc pro tunc and for an order granting an inquest is denied for the reasons set forth herein.
The plaintiff's attorney claims that he sent the process server the summons and complaint in August 2001. Ten months later, on June 26, 2002, the process server allegedly served the summons and complaint on the defendant.
However, the plaintiff's attorney never received the index number on this case, but did receive a bill on January 23, 2003 from the process server. On July 2, 2003, and again on July 24, 2003 the plaintiff's attorney attempted to make an ex parte application for a nunc pro tunc filing of the summons and complaint. The clerk rejected the ex parte application, requiring a more definitive statement as to what transpired.
Another six months elapsed before the plaintiff's attorney submitted this motion on notice on February 13, 2004.
The applicable statute, UDCA § 411, reads, in relevant part:
Summons or notice of petition; filing nunc pro tunc.
Where a summons in an action, or a petition or notice of petition in a special proceeding, has not been filed within the time prescribed by law, the court may order the filing thereof nunc pro tunc. In such instance the time within which the other party must respond thereto shall commence de novo, and shall run from the service upon such other party of a copy of such order with notice of entry thereof.
Perno v. Adames, 179 Misc 2d 381, dealt with New York's Civil Court Act (CCA) § 411, which is identical to UDCA § 411. The Court held:
"Although the foregoing statute expressly refers only to the filing of the 'summons' (as opposed to the filing of the proof of service), the remedial nature of the statute ( i.e., the availability of a nunc pro tunc order) clearly encompasses both the filing of the summons and the filing of proof of service thereof ( see, Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 29A, CCA 411, at 149. ["If the plaintiff fails to file proof of service within the time required by § 409(a), the consequences of the failure are governed by (§ 411)"]; see also, Lumberman's Mut. Cas. Co. v. Temco Serv. Indus., 209 AD2d 296, supra; Revelstoke Props. v. Beaumont Neckwear, 114 Misc 2d 545 [Civ Ct, NY County 1982]; Sears Roebuck Co. v. Austin, 60 Misc 2d 908, 909 [Civ Ct, NY County 1969].)"
Thus, it is clear that when a plaintiff, like the plaintiff here, fails to file proof of service, or when he or she files it untimely, such failure is curable by a nunc pro tunc order pursuant to CCA § 411. Dismissal of the complaint — the remedy sought by defendant — is therefore not appropriate at this time. In short, as Professor Siegel explained in his Practice Commentaries to CCA § 411, "[t]he failure to file proof of service is plainly not a jurisdictional defect" (Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 29A, CCA § 411, at 149.)
If the nunc pro tunc filing were granted and the defendant still failed to either appear or answer, the plaintiff would be required to seek a default judgment by application pursuant to CPLR 3215.
CPLR 306-b provides that service of the summons and complaint shall be made "within 120 days after the filing of summons and complaint". The Court in its discretion has the power to either dismiss the action without prejudice or "upon good cause shown or in the interest of justice, extend the time for service". Requests for extensions under this statute are frequently denied ( see, e.g., Carbonaro v. Maimonides Medical Center, 289 AD2d 437, 735 NYS2d 162 [2nd Dept 2001]; Glasgow v. Evans, 291 AD2d 372, 736 NYS2d 884 [2nd Dep't 2002]). ("The record demonstrates an extended delay in service, a lack of diligence in effecting service, the failure to promptly and properly move for an extension of time, and the complete failure to demonstrate the existence of a meritorious action" (citing Leader and Carbonaro); Ludemann v. Maisel, 292 AD2d 428, 739 NYS2d 418 [2nd Dept 2002]; Della Villa v. Kwiatkowski, 293 AD2d 886, 740 NYS2d 533 [3rd Dept 2002]).
In Leader v. Maroney, Ponzini Spencer, 97 NY2d 95, 736 NYS2d 291, 761 NE2d 1018 (2001), discussed in N.Y.S. Law Digest, No. 504, at 1 (Dec. 2001), the Court of Appeals clarified the relationship between the good cause and interest of justice standards for granting an extension of time under CPLR 306-b.
"We . . . hold that under the interest of justice standard, a showing of reasonable diligence in attempting to effect service is not a 'gatekeeper.' It is simply one of many relevant factors to be considered by the Court. . . . The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the Court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant." (Footnote omitted.)
"In his commentary to CPLR 306-b, Prof. Alexander sets forth two sets of factors, one set for good cause and one set for interests of justice. The first set includes: plaintiff's diligence in attempting service; counsel's neglect, inadvertence, or mistake as not qualifying as good cause; length of delay in service; prejudice to defendant as a result of untimely service; and promptness of plaintiff's request for an extension. The second set includes: expiration of the statute of limitations; actual notice to defendant that litigation was imminent or had been commenced; potential merit of plaintiff's cause of action; length of delay in service; prejudice to the defendant as a result of untimely service; and promptness of plaintiff's request for an extension. These lists come close to covering all bases, and counsel would do well to address them in seeking an extension of the 120-day deadline ( see, e.g., Foote v. Ruiz, 289 AD2d 374, 734 NYS2d 887 [2nd Dept 2001])."
Further, the Court cannot grant a hearing on damages simply for the asking. The plaintiff is required to prove liability before the Court may grant a hearing. That portion of the plaintiff's motion seeking an inquest is therefore denied. Even if the nunc pro tunc filing is granted, the defendant must be permitted time to answer the summons and complaint de novo.
Since the granting of a nunc pro tunc order is discretionary, the Court declines to grant the order because of the two and a half (2½) year gap between the sending of the summons and complaint to the process server and the making of this motion.
In Rosato v. Ricciardi, 174 AD2d 937, the Appellate Division dealt with the issue of a late filing in a motion by the defendant to vacate a judgment. In reversing the lower court, the Appellate Division said:
"The failure to timely file proof of service is concededly a "mere irregularity" without jurisdictional implications ( see, McCormack v. Gomez, 137 AD2d 504, 505; McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C308:4, at 311) and may be cured by an order pursuant to CPLR 2001 and 2004. Here, the required proof of service was not filed until the default judgment was sought, well beyond 20 days after the nailing and mailing procedure. Plaintiff did not seek leave permitting late filing until she responded to defendants' application for vacatur in March 1990, at which time she cross-moved for an order permitting the untimely filing nunc pro tunc.
By granting plaintiff relief nunc pro tunc Supreme Court not only gave plaintiff a remedy, but made that relief retroactive to defendants' prejudice by placing defendants in default as of a date prior to the order. It also gave effect to a default judgment which prior thereto was a nullity requiring vacatur ( see, Red Cr. Natl. Bank v. Blue Star Ranch, 58 AD2d 983, 984; see also, Wiley v. Lipset, 140 AD2d 336, 337; R.L.C. Investors v. Zabski, 109 AD2d 1053; Union Natl. Bank v. Davis, 67 AD2d 1034). Accordingly, the default judgment should have been vacated, plaintiff granted permission to file the proof of service pursuant to CPLR 2001 and defendants given an opportunity to answer." (Emphasis supplied.)
In the instant case, even if the nunc pro tunc filing were granted and the defendant was to default, the plaintiff is required to seek a default judgment, by application pursuant to CPLR 3215. The plaintiff is required to first prove liability before damages can be awarded. In view of the two-and-a-half year delay from the purported service of process to the filing with the clerk, and the irregularities in the process server's compliance with procedure, the court declines to issue an order nunc pro tunc without a hearing on this matter.
All parties are directed to appear for a hearing to be held at the First District Court, 99 Main Street, Hempstead, New York on the 3rd day of May, 2004 at 9:30 a.m. to determine whether the summons and complaint should be permitted to be filed nunc pro tunc. Any remaining issues are respectfully referred to the Judge presiding at the hearing