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!

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

[1] CPLR § 308. Read the section for all of its requirements.

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