Schulze v. Pray

13 Misc. 2d 737, 176 N.Y.S.2d 31, 1958 N.Y. Misc. LEXIS 3346

• Court: New York Supreme Court
• Decided: May 13, 1958
• Status: Published

Opinion

Howard T. Hogan, J.

Motion to cancel a notice of pendency of action on the ground that the summons was not served on a defendant within 60 days after the filing of said notice of pendency.

The Sheriff of Nassau County is a named defendant in this action. It is alleged in paragraph “ 9 ” of the movant’s affidavit dated April 17, 1958 that the Sheriff has not been served with the summons and complaint. An affidavit of Jesse P. Combs, the Sheriff, contains the averment that service on him was made of “ a set of legal papers ’ ’ on February 10, 1958 pursuant to an order to show cause signed by Mr. Justice Ritchie and that among those papers were copies of the summons and the complaint.

The court has examined the order to show cause and supporting papers filed in the County Clerk’s office on February 10, 1958. The fact that a summons and complaint are included is clearly noted on the legal cover for the papers, and is evident from a mere examination of the papers. Service of all the papers was made in conformance with the directions of Mr. Justice Ritchie. The mere fact that the summons and complaint are not separated from the other papers relating to the motion does not render the service of the process invalid.

As the notice of pendency was filed on February 10, 1958 and the summons and complaint was served on the defendant Sheriff on the same date, the motion is denied.