Service and Defaults, Vacating Defaults

Question 1

The Summons

Answer 1

What is the summons? CPLR 305

Question 2

Can you serve a summons without a
complaint?
* Summons with notice CPLR 305(b)
* Can you serve a complaint without a summons

Question 3

Personal Delivery CPLR 308(1)

Answer 3

One copy for each defendant served
* Enticement is OK if not too far
* Do not put it in an envelope
* Can leave it on table, floor, etc.
* Redelivery
– Only if it is demonstrated that diligent efforts were made to find and
serve right person
– Process server serves someone who immediately or close in time gives
it to the defendant.
– The principle of redelivery … is intended to apply only where the
summons is in the “general vicinity” of the proper person, such that
“redelivery by the person wrongly served” can be considered “so close
both in time and space that it can be classified as a part of the same
act.” McDonald v. Ames Supply Co., 22 N.Y.2d 111

Question 4

Suitable Age and Discretion
CPLR 308(2)

Answer 4

• If SAD will not come to the door, you can leave
  the summons at the door.
• Cannot use SAD with a corporate defendant
  (just serve the Secretary of State)

Question 5

Nail & Mail
CPLR 308(4)

Answer 5

• What constitutes Due Diligence?
• Is once enough?
• Is same time every day enough?
• Last known residence DOES NOT count for actual
  abode. Must be actual.
• For affixing – tack or tape is okay.
• Rubber band around doorknob is ok
• If apt building and can’t get in – can affix to lobby
  door or SAD the door man.

Question 6

Substituted Service CPLR 308(5)

Answer 6

• Ex parte Motion
• No other means practicable
• Court can order any kind of service
• On literary agent
• On insurance company in an auto case
• To show impracticable ‐ PO request, DMV
  request, some public records hunting

Question 7

Serving an Infant

Answer 7

Infant CPLR 309(a) serve parent or guardian or person
with legal custody. If infant over 14 y.o. must serve
infant also

Question 8

Serving a Corporation CPLR 311(1),

Answer 8

Serve an officer, director, managing agent, general agent, cashier, assistant cashier,
or any other agent authorized to receive service.

Or serve the Secretary of State for domestic or authorized corps., or doing business
corps.

Question 9

More Miscellaneous Service Provisions

Answer 9

State – see Court of Claims Act
– AG then to Court of Claims

• City – See General Municipal Law
  – Complicated depending on whether City
  Department or Independent Agency

Question 10

Appearance

Answer 10

• What does it mean to appear in an action?
• What constitutes an appearance in an action?
• How do you appear in an action and preserve
  an objection to personal jurisdiction?

Question 11

How do you appear?

Answer 11

• Plaintiffs?
• By bringing the action.
• Defendants
• Serving an answer
• Making a motion other than a motion to dismiss for lack of
  jurisdiction or some other motion that extends the time to
  answer (e.g.. Motion to correct pleadings)
• Defendants by informal appearance by participating in the
  action
  – E.g. showing up at trial and taking testimony
  – Submits to a deposition
  – Takes plaintiff’s deposition

Question 13

How do you appear without waiving the
objection to personal jurisdiction?

Answer 13

• Move to dismiss for lack of personal
  jurisdiction
• Raise the affirmative defense of lack of
  personal jurisdiction in the Answer
• In Quasi inRem actions, appear for the limited
  purpose of defending that Rem action without
  submitting to the court’s jurisdiction

Question 14

What is the easiest way to raise then
waive the objection to personal
jurisdiction?

Answer 14

Raise it as an affirmative defense then waive it
by failing to move to dismiss within 60 days.
CPLR 3211(e)

Question 15

CPLR 3211(e)

Answer 15

(e) Number, time and waiver of objections;  motion to plead over. At any time
before service of the responsive pleading is required, a party may move on one or
more of the grounds set forth in subdivision (a), and no more than one such motion
shall be permitted. Any objection or defense based upon a ground set forth in
paragraphs one, three, four, five and six of subdivision (a) is waived unless raised
either by such motion or in the responsive pleading. A motion based upon a ground
specified in paragraph two, seven or ten of subdivision (a) may be made at any
subsequent time or in a later pleading, if one is permitted;  an objection that the
summons and complaint, summons with notice, or notice of petition and petition
was not properly served is waived if, having raised such an objection in a pleading,
the objecting party does not move for judgment on that ground within sixty days
after serving the pleading, unless the court extends the time upon the ground of
undue hardship. The foregoing sentence shall not apply in any proceeding under
subdivision one or two of section seven hundred eleven of the real property actions
and proceedings law. The papers in opposition to a motion based on improper
service shall contain a copy of the proof of service, whether or not previously filed.
An objection based upon a ground specified in paragraph eight or nine of subdivision
(a) is waived if a party moves on any of the grounds set forth in subdivision (a)
without raising such objection or if, having made no objection under subdivision (a),
he or she does not raise such objection in the responsive pleading.

Question 16

And if Defendant Fails to Answer

Answer 16

• Motion for Default Judgment if Defendant Fails to Answer
  CPLR 3215
  – Proof of Service
• How do you prove this?
  – Proof of Facts Constituting the Claim & amount due (the Merits)
• How do you prove this?
  – Proof of Default CPLR 320 (a)
• How do you prove this?
  – When must the motion be made
• CPLR 3215(c) within one year
  – Default is for liability only, unless action sum certain, like a debt
  – Defendant may appear at inquest and defend on damages

Question 17

How to Default if You are the
Defendant – CPLR 317 or 5015

Answer 17

• CPLR 320: Fail to Answer the Complaint on time
• CPLR 3215: Plaintiff moves for Default Judgment & gets it.
  THE FIX CPLR 317 or 5015
• CPLR 317: When plaintiff claims service was other than by
  personal delivery, defendant moves to vacate default on
  the grounds that defendant was not personally served with
  the Summons and Complaint
• CPLR 5015: If personal delivery, defendant moves to
  vacate default

Question 18

The Defendant’s Motion to Vacate Default
Type 1: Substituted Service
CPLR 317

Answer 18

• Vacating the default in appearing in the action. Service by
  other than personal delivery. CPLR 317
  – Motion to vacate must be made within one year after defendant
  obtains knowledge of entry of the judgment
  – AND Motion must be made no more than 5 years after entry of
  the judgment
• Showing on the Motion:
  – Movant must convince the court that he did not personally
  receive notice of the summons in time to defend
  – Must show a meritorious defense
• Not available in actions for divorce, annulment or partition

Question 19

The Motion to Vacate Default
Type II: Everything else
CPLR 5015 (used by plaintiffs and
defendants for all kinds of default)

Answer 19

Used to vacate Judgments, Orders, and any
other kind of default
* Motion must be made to the court that
rendered the Judgment or Order

Question 20

Grounds to Vacate Under
CPLR 5015

Answer 20

Excusable Default CPLR 5015(a)(a) Motion must be made within 1
year of service of the judgment or order with notice of entry 5015
(a)(1)
* Newly Discovered Evidence which, if introduced at trial, would
probably have produced a different result and the evidence could not
have been discovered in time to move for a new trial under CPLR
4404 (which is 15 days after jury discharged) 5015 (a)(2)
* Fraud, misrepresentation or misconduct by an adversary 5015 (a)(3)
(no specific deadline)
* Lack of jurisdiction to render the verdict or order 5015 (a)(4) (no
specific deadline)
* Reversal, modification or vacatur of a prior order upon which the
judgment or order is based 5015 (a)(5) (no specific deadline)
* NOTE Restitution is available if there was payment on a judgment. 5015(d)

Question 21

Showing Required Under
CPLR 5015

Answer 21

If there is any question, bring the motion by Order to
Show Cause so the court can determine the method
of service and who should be served.
* Excusable Default –
– Show the Excuse by affidavit of a person with personal
knowledge
– Show the Merits by affidavit of a person with knowledge
and qualifications
* All Grounds to vacate default. Showing must be by
affidavit of person with knowledge.

Question 22

Other kinds of defaults

Answer 22

• Uniform Rule 202.27 – failure to appear at a conference Defaults.
  – At any scheduled call of a calendar or at any conference, if all parties do not
  appear and proceed or announce their readiness to proceed immediately or
  subject to the engagement of counsel, the judge may note the default on the
  record and enter an order as follows:
  – (a) If the plaintiff appears but the defendant does not, the judge may grant
  judgment by default or order an inquest.
  – (b) If the defendant appears but the plaintiff does not, the judge may dismiss
  the action and may order a severance of counterclaims or cross‐claims.
  – (c) If no party appears, the judge may make such order as appears just.
• CPLR 3216 90‐day notice to prosecute
• CPLR 3403 Abandoned Actions
• Default in opposing a motion

Question 23

The Fix ‐ Default if You are the Plaintiff

Answer 23

• Fail to move for a default judgment within 1
  year as required under CPLR 320
  THE FIX:
• Then add to your motion for default judgment
  under CPLR 320, motion pursuant to CPLR
  2004 to extend your time to move.
• May need to cite CPLR 2005 also
• Served with a 90‐day notice to prosecute
  pursuant to CPLR 3216 and you fail to
  prosecute the action
  THE FIX
• Move to vacate your default under CPLR 5015

Question 24

The Fix ‐ How Else to Default if you
are Plaintiff
* Your case gets stricken from the trial calendar
and you fail to restore the case to the calendar
within 1 year, as required by CPLR 3403
THE FIX
* Move to vacate your default pursuant to CPLR
5015

Question 25

The Fix ‐ Default if you are plaintiff
or defendant
* Fail to oppose a motion:
* Fail to appear for oral argument
* Fail to appear at a conference pursuant to
Uniform Rule 202.27
THE FIX
* Move to vacate the default pursuant to CPLR
5015