In this case the estates loses a claim for fees because of bad service of process. Estate of Norman Perlman v Kelley  2019 NY Slip Op 06475 Decided on September 11, 2019 Appellate Division, Second Department goes on to catalog how and why the service was bad.

“The plaintiff commenced this action on December 31, 2015, by filing a summons and complaint. On January 21, 2016, the plaintiff filed an affidavit of service with the Kings County Clerk’s Office, which stated that on January 14, 2016, service was effectuated upon the defendant pursuant to CPLR 308(2) by delivery of the summons and complaint to a paralegal who worked at the defendant’s law office. The affidavit of service did not indicate that the summons and complaint had been mailed to the defendant. On or about March 17, 2016, the plaintiff moved for leave to enter a default judgment against the defendant. The affirmation of service attached to the motion papers stated, inter alia, that the plaintiff had mailed a “second copy” of the summons and complaint to the defendant on February 13, 2016. However, there is no evidence in the record that the plaintiff ever filed an affidavit of service with the Kings County Clerk’s Office indicating that the summons [*2]and complaint had been mailed to the defendant. The defendant opposed the plaintiff’s motion, contending, inter alia, that the motion was premature, and cross-moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated February 22, 2017, the Supreme Court, inter alia, granted the defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. The plaintiff thereafter moved, inter alia, for leave to reargue his opposition to the defendant’s cross motion. In an order dated June 15, 2017, the court, inter alia, granted reargument and, upon reargument, adhered to its original determination granting the defendant’s cross motion. The plaintiff appeals.

CPLR 308(2) provides, in pertinent part, that personal service may be made upon a defendant by delivery of the summons upon “a person of suitable age and discretion at the actual place of business . . . of the person to be served and by . . . mailing the summons by first class mail to the person to be served at his or her actual place of business . . . , such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing whichever is effected later; service shall be complete ten days after such filing.”

“Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with'” (Josephs v AACT Fast Collections Services., Inc., 155 AD3d 1010, 1012, quoting Gray-Joseph v Shuhai Liu, 90 AD3d 988, 989; accord Munoz v Reyes, 40 AD3d 1059, 1059; Ludmer v Hasan, 33 AD3d 594, 594). “CPLR 308(2) requires strict compliance and the plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made” (Samuel v Brooklyn Hosp. Ctr., 88 AD3d 979, 980).

Here, the mailing of the summons to the defendant occurred more than 20 days after the delivery upon a person of suitable age and discretion. Additionally, the plaintiff never filed an affidavit of service with the Kings County Clerk’s Office indicating that the mailing had been effectuated. Accordingly, the service of process upon the defendant did not comply with the strict requirements of CPLR 308(2), and the time for the defendant to serve an answer never began to run (see CPLR 3012).

Contrary to the plaintiff’s contention, the delay in mailing was not a mere “technical infirmity” that may be overlooked by the court pursuant to CPLR 2001 (Ruffin v Lion Corp., 15 NY3d 578, 582 [internal quotation marks omitted]). “In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant—notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” (id. at 582 [internal quotation marks omitted]). As the Court of Appeals noted in Ruffin, a defendant’s “actual receipt of the summons and complaint is not dispositive of the efficacy of service” (id. at 583). “For example, simply mailing the documents to defendant or e-mailing them to defendant’s Web address would present more than a technical infirmity, even if defendant actually receives the documents, inasmuch as these methods in general introduce greater possibility of failed delivery” (id.).

A mailing sent within the wrong time frame, like a mailing sent by the wrong method (see id.Brown v State of New York, 114 AD3d 632), increases the likelihood that a party will not receive proper notice of a legal proceeding. The first 20-day window set forth in CPLR 308(2) serves an important function. If the delivery and mailing required by that statute are not made within a short time of one another, there is a greater likelihood that one or both sets of pleadings will be mislaid, or, at the very least, that confusion will arise as to how much time the defendant has to respond—both of which appear to have occurred here. Further, the requirement that an affidavit of service be filed within 20 days of the delivery or mailing, whichever is effected later, also serves an important function. Timely filing of the affidavit of service is designed to give notice as to the plaintiff’s claim of service and permit the defendant to calculate the time to answer. Where the affidavit of service claims that delivery but not mailing occurred within the 20-day period, yet the plaintiff intends to later claim that a timely mailing did occur, additional confusion is created, a defendant may be prejudiced by reliance upon the publicly filed affidavit which only partially [*3]disclosed the plaintiff’s claim of service, and such prejudice may preclude the prospect that the failure to file the affidavit could be cured (cf. Khan v Hernandez, 122 AD3d 802, 803).

We therefore agree with the Supreme Court’s determination that the plaintiff’s failure to comply with the delivery and mailing requirements of CPLR 308(2) in the time prescribed by the statute was a jurisdictional defect, and that the plaintiff’s late mailing of the summons and complaint after the statutory time period did not cure the defect in service. The plaintiff’s remaining contentions are without merit. Accordingly, we agree with the court’s determination, upon reargument, to adhere to its prior determination granting the defendant’s cross motion to dismiss the complaint for lack of personal jurisdiction.”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

 

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.