service requirement in New York

2025For example, in In re M.M. , 2 Misc 3d 747 , 771 NYS2d 315 [Supreme Court Rensselaer County 2003] the court dispensed with the notice requirement where the petitioning parent presented credible evidence the non-petitioning parent presented a safety threat to the petitioning parent and the infant.

2025For example, in In re M.M. , 2 Misc 3d 747 , 771 NYS2d 315 [Supreme Court Rensselaer County 2003] the court dispensed with the notice requirement where the petitioning parent presented credible evidence the non-petitioning parent presented a safety threat to the petitioning parent and the infant.

1944Ct. Act, § 211); and they probably will continue to be so considered until either the Legislature prescribes further steps to be taken by the claimant beyond those which he is now obliged to take, or until judicial interpretation reaches the same result.” Further discussing and comparing the decisions in Matter of Whitcher (supra) and Matter of Dietz ( 134 Misc. 393 ) Surrogate Feely wrote: ‘ ‘ As between the two opinions, that of the majority in the Whitcher case seems preferable to the others; and my conclusion is that the service of the claim and its quasi-judicial rejection as aforesaid to

1944Ct. Act, § 211); and they probably will continue to be so considered until either the Legislature prescribes further steps to be taken by the claimant beyond those which he is now obliged to take, or until judicial interpretation reaches the same result.” Further discussing and comparing the decisions in Matter of Whitcher (supra) and Matter of Dietz ( 134 Misc. 393 ) Surrogate Feely wrote: ‘ ‘ As between the two opinions, that of the majority in the Whitcher case seems preferable to the others; and my conclusion is that the service of the claim and its quasi-judicial rejection as aforesaid to

1993Petitioner admittedly failed to comply with the service requirements and did not show "that his imprisonment presented obstacles beyond his control which prevented him from complying with the service requirement” (Matter of Wright v Parole Div., 132 AD2d 821, 822 ).

1993Petitioner failed to comply with the service requirements and failed to show that "his imprisonment presented obstacles beyond his control which prevented him from complying with the service requirement” (Matter of Wright v Parole Div., 132 AD2d 821, 822 ).

1993Petitioner therefore did not acquire personal jurisdiction over respondents and the petition was properly dismissed (see, Matter of Hoyer v Coughlin, 179 AD2d 921 ; Matter of Wright v Parole Div., supra).

1993Petitioner thus failed to acquire personal jurisdiction over respondent and the proceeding was properly dismissed (see, Matter of Hoyer v Coughlin, 179 AD2d 921 ; Matter of Wright v Parole Div., supra).

1944Ct. Act, § 211); and they probably will continue to be so considered until either the Legislature prescribes further steps to be taken by the claimant beyond those which he is now obliged to take, or until judicial interpretation reaches the same result.” Further discussing and comparing the decisions in Matter of Whitcher (supra) and Matter of Dietz ( 134 Misc. 393 ) Surrogate Feely wrote: ‘ ‘ As between the two opinions, that of the majority in the Whitcher case seems preferable to the others; and my conclusion is that the service of the claim and its quasi-judicial rejection as aforesaid to

1936On the contrary, Surrogate Feely in a very learned and comprehensive opinion writes in Matter of Schorer ( 154 Misc. 198, at p. 208 ): “ As between the two opinions [referring to Matter of Whitcher (supra) and Matter of Deitz ( 134 Misc. 393 ), decided in June, 1929, apparently conflicting opinions] that of the majority in the Whitcher case seems preferable to the others; and my conclusion is that the service of the claim and its quasi-judicial rejection as aforesaid together constituted the joinder of an issue on the claimant’s interposition of his demand by intervening in the official liquid

1936In Matter of Schorer ( 154 Misc. 198 ) the claimant presented a timely verified claim against the estate for services rendered to the decedent.

1936On the contrary, Surrogate Feely in a very learned and comprehensive opinion writes in Matter of Schorer ( 154 Misc. 198, at p. 208 ): “ As between the two opinions [referring to Matter of Whitcher (supra) and Matter of Deitz ( 134 Misc. 393 ), decided in June, 1929, apparently conflicting opinions] that of the majority in the Whitcher case seems preferable to the others; and my conclusion is that the service of the claim and its quasi-judicial rejection as aforesaid together constituted the joinder of an issue on the claimant’s interposition of his demand by intervening in the official liquid

1935(Reynolds v. Collins, 3 Hill, 36 ; Schutz v. Morette, 146 N. Y. 137 ; Matter of Rogers, 153 id. 316, 322.) “ However, the jurisdiction of the Surrogate’s Court in respect of contested claims has been so radically changed and enlarged since these decisions as to weaken their logic.” Apropos of that radical change, it will be recalled that before 1914 a written claim, and a notice of its rejection, and a stipulation for its trial, were jurisdictionally prerequisite to enable the Surrogate’s Court to try the disputed claim.

1930(Reynolds v. Collins, 3 Hill, 36 ; Schutz v. Morette, 146 N. Y. 137, 144 ; Matter of Rogers, 153 id. 316, 322.) However, the jurisdiction of the Surrogate’s Court in respect of contested claims has been so radically changed and enlarged since these decisions as to weaken their logic.

2017“The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with.” (Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929 [2008]; Lobo v Soto, 73 AD3d 1135 [2010]; Matter of Hennessey v DiCarlo, 21 AD3d 505 [2005].) Moreover, “the court in an order to show cause is not restricted to the methods [of personal service] prescribed by CPLR 308 and can devise yet other methods good for the particular case.” (Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 2214:24.) This court has previously

2017“The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with.” (Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929 [2008]; Lobo v Soto, 73 AD3d 1135 [2010]; Matter of Hennessey v DiCarlo, 21 AD3d 505 [2005].) Moreover, “the court in an order to show cause is not restricted to the methods [of personal service] prescribed by CPLR 308 and can devise yet other methods good for the particular case.” (Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 2214:24.) This court has previously

2016The proposed intervenors lack standing to raise the improper service defense on behalf of the mortgagor (see Wells Fargo Bank, N.A. v Bowie, 89 AD3d 931 [2d Dept 2011]).

2015This court is in agreement with the conclusion of the Honorable Judge Weinstein in Gardner v City Univ. of N.Y. ( 41 Misc 3d 912 [Ct Cl 2013]) that a failure to abide by a court-imposed deadline, as distinct from the time limitations of Court of Claims Act § 10, is not a jurisdictional defect “ ‘fundamental to the power of adjudication of a court’ ” ( 41 Misc 3d at 917 , quoting Manhattan Telecom.

2015This court is in agreement with the conclusion of the Honorable Judge Weinstein in Gardner v City Univ. of N.Y. ( 41 Misc 3d 912 [Ct Cl 2013]) that a failure to abide by a court-imposed deadline, as distinct from the time limitations of Court of Claims Act § 10, is not a jurisdictional defect “ ‘fundamental to the power of adjudication of a court’ ” ( 41 Misc 3d at 917 , quoting Manhattan Telecom.

2014Corp., 184 AD2d 329 [1992]).

2014There is no proof in the record that the plaintiff submitted an affidavit of service by mail of an additional copy of the summons upon the defendant’s residence or last known residence in compliance with the additional service requirement of CPLR 3215 (g) (3) (see Bunch v Dollar Budget, Inc., 12 AD3d 391 [2004]; Schilling v Maren Enters., 302 AD2d 375, 376 [2003]; Ocuto Blacktop & Paving Co. v Trataros Constr., 277 AD2d 919, 920 [2000]; Rafa Enters. v Pigand Mgt.

2008Compliance with the filing and service provisions set forth within Court of Claims Act § 11 is jurisdictional in nature (see Kolnacki, 8 NY3d 277 [2007] [the failure to recite total sum due under section 11 (former [b]) is jurisdictional defect]; Lepkowski, 1 NY3d 201 [2003] [the failure to address pleading provisions set forth within section 11 (b) is jurisdictional defect]; Filozof v State of New York, 45 AD3d 1405 [2007] [service by registered mail did not conform to section 11 (a) (i)’s requirement of certified mailing, and thus is jurisdictionally deficient]).

2008Compliance with the filing and service provisions set forth within Court of Claims Act § 11 is jurisdictional in nature (see Kolnacki, 8 NY3d 277 [2007] [the failure to recite total sum due under section 11 (former [b]) is jurisdictional defect]; Lepkowski, 1 NY3d 201 [2003] [the failure to address pleading provisions set forth within section 11 (b) is jurisdictional defect]; Filozof v State of New York, 45 AD3d 1405 [2007] [service by registered mail did not conform to section 11 (a) (i)’s requirement of certified mailing, and thus is jurisdictionally deficient]).

2008Compliance with the filing and service provisions set forth within Court of Claims Act § 11 is jurisdictional in nature (see Kolnacki, 8 NY3d 277 [2007] [the failure to recite total sum due under section 11 (former [b]) is jurisdictional defect]; Lepkowski, 1 NY3d 201 [2003] [the failure to address pleading provisions set forth within section 11 (b) is jurisdictional defect]; Filozof v State of New York, 45 AD3d 1405 [2007] [service by registered mail did not conform to section 11 (a) (i)’s requirement of certified mailing, and thus is jurisdictionally deficient]).

2003Where, as here, no prejudice has resulted to defendant from this technical violation of CPLR 5403, Supreme Court did not err in rejecting plaintiffs objection to the service as a defense to enforcement of the Michigan judgment (see Shine, Julianelle, Karp, Bozelko & Karazin v Rubens, 192 AD2d 345, 346 [1993], lv dismissed 82 NY2d 778 [1993], cert denied 511 US 1142 [1994]).

2003Where, as here, no prejudice has resulted to defendant from this technical violation of CPLR 5403, Supreme Court did not err in rejecting plaintiffs objection to the service as a defense to enforcement of the Michigan judgment (see Shine, Julianelle, Karp, Bozelko & Karazin v Rubens, 192 AD2d 345, 346 [1993], lv dismissed 82 NY2d 778 [1993], cert denied 511 US 1142 [1994]).

2002The claimant’s service of the claim upon the Attorney General on behalf of the State did not satisfy that requirement (see Fosco Fabricators v State of New York, 94 AD2d 667 ; Mem of Off of Gen Servs, L 1970, ch 513, 1970 Legis Ann, at 210).

2002Since defendants did not move to dismiss the complaint until more than 60 days after they served their answer, in which lack of personal jurisdiction was raised as an affirmative defense, the improper service defense was waived (CPLR 3211 [e]; Worldcom, Inc. v Dialing Loving Care, 269 AD2d 159 ).