WHEN PERSONAL SERVICE IS QUESTIONABLE IN A DIVORCE ACTION

WHEN PERSONAL SERVICE IS QUESTIONABLE IN A DIVORCE ACTION

Are you a defendant in a matrimonial action who believes you may not have been properly serviced?  Are you a plaintiff in a matrimonial action who hired a process server to serve your spouse, and are not sure he did his job properly? If so, you need to consult with Garden City divorce attorneys, Fass & Greenberg, LLP for the answers. 

The issue is whether service of a Summons With Notice of a defendant in a 

divorce action “through the door” of his residence while he is home but refuses to answer, constitutes personal service in accordance with CPLR 308(1), and if the Court finds any defect in such service, has the defendant, by failing to timely (i) answer and raise an objection to jurisdiction, or (ii) move to dismiss the action, waived his right to raise this objection? 

In the event the Court finds defendant has not waived this right, should the Court

 extend plaintiff’s time to effect substitute service of the Summons With Notice by “leave and mail”, overnight mail, or whatever service the Court deems appropriate under the circumstances? 

Service of process outside the door to a residence with the defendant in plain view through the window constitutes personal service pursuant to CPLR 308(1)

           If a defendant was aware that an action had been filed, and refused to open the door when the process server appeared at his home, ignored all attempts by plaintiff’s attorney to connect with him outside a litigated environment, and then waited after the expiration of 120 days before raising the issue of personal service in the action, is he considered “personally served? 

New York courts recognize that there is a duty to accept service of process. Haak v. Wheatland, 86 A.D.2d 961, Coyne v. Bessler, 154 A.D.2d 503 (2nd Dept, 1989) which reiterates that resisting such service can result in valid service if the process is left in the defendant’s general vicinity.  Personal delivery of a Summons can be conferred without directly handing it to the defendant provided the process server “has acted reasonably in placing the summons within reach of the defendant, and, therefore under CPLR 308(1), delivery of a summons may be accomplished by leaving it in the “general vicinity of a person to be served who resists service. Thus, under that provision, if the person to be served interposes a door between himself and the process server, the latter may leave the summons outside the door, provided the person to be served is made aware that he is doing so. Bossuk v. Steinberg, 58 N.Y.2d 916. 

     The Court of Appeals has established as the controlling test whether, with ‘due diligence’ in fulfilling the statutory requirement of personal delivery * * * In such cases, service is sustained even though the process server did not in fact hand the summons to the proper party.  McDonald v. Ames Supply, 22 N.Y. 111, 115. 

The next question that arises is does defendant’s failure to time move to dismiss the Summons and or Verified Complaint constitutes a waiver of the defense of lack of personal jurisdiction in the divorce action? 

A defendant must assert objections to personal jurisdiction in the answer or a motion to dismiss pursuant to CPLR 3211(a)8. In the instant matter, Defendant was served with the Summons With Notie on May 1, 2024.  He did not submit a Notice of Appearance, or any objection to jurisdiction.  Defendant was served with a Verified Complaint on August 8, 2024, by mail, and did not submit an Answer, make a motion, or raise any objection to jurisdiction until he appeared in Court on September 11, 2024 and disclosed his objection that he was never served.  

A defendant must make a motion to dismiss under CPLR 3211 for lack of personal jurisdiction before the service of the responsive pleading, or it will be considered untimely.  Digit Direct & More, Inc. v. Dialectic Distrib., LLC 230 A.D.3d, 567 (2nd Dept., 2024).  Specifically, the motion must be filed within the same time frame prescribed for serving an answer, which is 20 days after service in New York.  

In the event the Court finds a defect in the personal service of the Summons With Notice and accompanying papers the Court can extend the time to serve defendant after 120 days of filing if the plaintiff demonstrates ‘good cause shown” or if it is in the “interest of justice.” CPLR 306-b., Leader v. Malone, 97 N.Y.2d 95, 736 N.Y.S.2d 291 (2001)., provided plaintiff can demonstrate “reasonable diligence in attempting to effect service.” Scarabaggio v. Olympia & York Estates Co., 278 A.D.2d 476, 718 N.Y.S.2d 392 (2nd Dept., 2000). or good cause shown and in the interest of justice. 

In Robles v. Mirzakhmedov, 34 A.D.3d 554, 824 N.Y.S.32d 406 (2nd Dept., 2006), the Court extended plaintiff’s time to serve the summons where service timely made within the 120 day period was later found to be defective, and there was no prejudice to the defendant, who had actual notice of the  action. Also see, Gabbar v. Flatlands Commons, LLC, 150 A.D.3d 1084, 55 N.Y.S.3d 353 (2nd Dept., 2017). 

Garden City family law attorneys, Fass & Greenberg, LLP can provide the assistance needed for clients to navigate this difficult process. 

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