The defendant third-party plaintiff served the third-party defendants pursuant to CPLR 308(2) by delivering the third-party summons and complaint to a person of suitable age and discretion at the address of the third-party defendants' usual place of abode on February 11, 2019, and by mailing copies to the same address the next day. The proofs of service were filed on April 2, 2019, past the 20-day filing period required by CPLR 308(2). The defendant third-party plaintiff moved for leave to enter a default judgment against the third-party defendants, and the third-party defendants opposed the motion on the ground that they had already served a third-party answer.
While the failure to file a timely proof of service is a curable procedural irregularity, here, the defendant third-party plaintiff did not obtain an order permitting a late filing of proof of service. Accordingly, the late filings were nullities and the third-party defendants' time to answer never began to run. Since the third-party defendants were not in default, the defendant third-party plaintiff's motion for leave to enter a default judgment against the third-party defendants is denied.
K.J. v. Longo, NY Slip Op 04957 (2d Dep't August 17, 2022)
