Failure to Serve Complaint

Plaintiff’s have 120 days from the time they file the complaint with the County Clerk to serve the Defendant.  When the Plaintiff fails to serve, the Defendant may move to dismiss the complaint under CPLR 306-b.  “Although Plaintiff’s failed to properly effect service of process, his [Plaintiff’s] cross motion for an order extending his time to serve the summons and complaint should have been granted in the interest of justice.  (CPLR 306-b.)  Interest of justice requires a careful judicial analysis of the factual setting of the case and a balance of the competing interests of the parties.” (Leader v. Maroney, Pnzini & Spencer, 97 N.Y.2d 95, 105 [2001]).

Service of Process

“While a process server’s sworn affidavit of service ordinarily constitutes prima facie evidence of proper service (Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343-344), where there is a sworn denial that delivery to the Defendant was accomplished, the affidavit of service is rebutted and the Plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing.” (internal citations omitted.)  Toyota Motor Credit Corp v. Lam, 93 A.D.3d 713 (2d Dep’t 2012.)  Unless the process server is unavailable to testify at the hearing, the process server’s written affidavit is deemed hearsay, and it is inadmissible at the hearing.  CPLR 4531; Anton v. Anton, 101 A.D.3d 819 (2d Dep’t 1984).  It is not admissible as a business record because it was prepared primarily in anticipation of litigation.

Note that if the process server does appear at the hearing, the affidavit may be used to:

1) Refresh the process server’s recollection, or

2) As evidence under the past recollection recorded exception to the hearsay rule, provided the server cannot totally and accurately recall the details of effectuating the service.  Alexander, Practice Commentaries, McKinney’s Cons Law of N.Y. Book 7B, CPLR 306:20 at 451-52.