Davis v. Bollweg

249 A.D.2d 972, 672 N.Y.S.2d 216, 1998 N.Y. App. Div. LEXIS 5110

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1998
• Status: Published

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of defendant Steven Kenan to dismiss the action against him based upon the untimely filing of proof of service (see, CPLR former 306-b [a]). Plaintiffs’ paralegal timely presented the original affidavit of service on Kenan pursuant to CPLR 308 (2) to the Onondaga County Clerk’s Office as an attachment to plaintiffs’ application for an order permitting service of a summons and verified complaint on Kenan and other defendants by publication. Plaintiffs’ paralegal submitted a Request for Judicial Intervention (RJI) and a $75 check to the County Clerk. The paralegal received a stamped copy of the RJI and was directed to file the application for the publication order directly with the Supreme Court Clerk’s Office. The County Clerk failed to retain a copy of the application papers. The application was subsequently denied. Although the affidavits of service were returned to plaintiffs’ counsel and never re-presented to the Onondaga County Clerk’s Office, we agree with the court that, despite the fact that the original affidavits were not retained by the County Clerk, the initial timely presentation to the County Clerk met the filing requirement of CPLR former 306:b (a) (see, CPLR 304).

In light of our holding, it is not necessary to address Kenan’s contention that the court improperly determined in the alternative that CPLR 2004 could be invoked to excuse a failure to file proof of service pursuant to CPLR former 306-b (a). (Appeal from Order of Supreme Court, Onondaga County, Major, J.— Dismiss Action.) Present — Denman, P. J., Pine, Wisner, Callahan and Fallon, JJ.