Served Improperly with a Summons and Complaint? Move to Dismiss within 60 Days!

New York law is strict when it comes to preserving — and acting upon — a defense grounded on improper service. In a nutshell, and subject to other rules (which I invite you to contact me about), valid service of a summons on an individual occurs through:

1. personal delivery;
2. delivery to another person in your current home or business with follow-up mailing;
3. affixing a copy to the door of your current home or business with follow-up mailing;
4. delivery to a designated agent; or
5. by any other manner that the court may direct.[1]

If you take the position that service was not carried out properly, you must either make a timely pre-answer motion to dismiss the complaint or alternatively, raise it as an affirmative defense in your answer and make a follow-up motion to dismiss the case within 60 days of serving the answer.

The court strictly enforces this rule. To seek an extension of that 60-day deadline you must establish "undue hardship," which appears to be a very strict standard. Protect yourself and make the motion to dismiss early!

In a recent legal decision, U.S. Bank N.A. v. Roque, the Second Department emphasized the importance of timely addressing lack of service as an affirmative defense. Here are the key takeaways from this case:

1. 60-Day Deadline: According to CPLR 3211(e), if a party raises the objection that a summons and complaint were not properly served in their pleading, they must move for judgment on that ground within 60 days after serving the pleading.

2. No Distinction: The requirement to make this motion within 60 days applies to motions made both pursuant to CPLR 3211 and CPLR 3212. The purpose of this time limit is to ensure that service objections are addressed promptly and resolved efficiently.

3. Prompt Resolution: The legislative intent behind CPLR 3211(e) is to encourage parties with valid service objections to deal with the issue promptly at the outset of the action, preventing unjustified objections and facilitating the swift resolution of meritorious ones.

See our prior blog, Legal Grounds for a Motion to Dismiss.