New York CPLR 306

The enactment of New York CPLR 306–a requires that actions in Supreme and County Courts be commenced by filing rather than by service, and upon filing, superimposed the requirement that service of process be effected within 120 days. The filing of the summons with notice or summons and complaint fixes the point at which an action commences. If, within 120 days, the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents. It is the requirement of a plaintiff to establish that it properly effectuated service of process upon a defendant.

Pursuant to New York CPLR 306–b, a court may grant a motion for an extension of time within which to effect service for good cause shown or in the interest of justice. Good cause will not exist where a plaintiff fails to make any effort at service, or fails to make at least a reasonably diligent effort at service. By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control. While CPLR 306–b is not construed to require that a motion for a service extension be filed before the expiration of the 120–day statutory period, prompt motions are more likely to be successful, as they are a sign of diligence, whereas dilatory motions are less so.

If good cause for an extension is not established, courts must consider the "interest of justice," considering whether the plaintiff exercised due diligence along with any other relevant factors 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.

Waiver of the Improper Service Foreclosure Defense

Notwithstanding the above, if a defendant raises such defense in an answer to the complaint, but fails to move by motion to dismiss or by summary judgment on that ground within sixty days, the defense is waived altogether.

The common knowledge of this requirement is not so "common." We find that many defending law firms have raised the improper service defense in their answers, and while some of those defenses were meritorious, the defending firm failed to motion for a timely dismissal on that ground. Then when motion practice ensued following discovery, these firms moved for dismissal only to be denied by the court.

Notwithstanding the above, there is one exception to the 60-day time limit to raise such motion. Exceptions beyond sixty days can be granted by the court upon the ground of undue hardship. The showing of undue hardship should explain (and hopefully evidence) that which prevented the movant to file a timely motion within the 60-day required period.

It is quite easy for a homeowner to waive proper foreclosure defenses by failing to move quickly enough. All legal papers should be addressed immediately to protect your legal defenses that may otherwise be abandoned. Call our office today at 718-819-1674 so we may evaluate the merits of your improper service and explore all legal remedies available to defend your home.