COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 84 June 30, 1997

S. 4553A By: Senator Volker

A. 8158 By: Committee on Rules

Senate Committee: Codes

Assembly Committee: Codes

Effective Date: 1st day of January next

succeeding the date on

which it shall become

a law

AN ACT to amend the civil practice law and rules, in relation to service and the extension of time for service and to repeal 306-b of such law relating thereto

LAW AND SECTION REFERRED TO: CPLR 306b

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND

RULES (#27)

THIS BILL IS DISAPPROVED

This bill seeks to repeal CPLR 306b and replace it with a new 306b. Current CPLR 306b provides that service of the filed summons and complaint and filing of an affidavit of service be completed within a specified period of time. The failure to so serve and file results in a deemed dismissal as to any defendant who has not appeared in the action. Following the deemed dismissal, the plaintiff has an opportunity to refile the summons and complaint, serve and file the affidavit of service.

The bill is motivated by the need to clarify some confusion as to whether the court is empowered under CPLR 2004 to extend the period of time in which the service and filing of affidavit of service is complete. Some courts have allowed extensions made even after the period of time has expired (see, e.g., Ressler Vineyards v. Kuhns, NYLJ February 28, 1994, p. 28, col. 6 (Sup.Ct.N.Y.Co.), other courts have allowed extensions so long as made within the period and so long as it does not have the effect of extending the statute of limitations (see, e.g., Norstar Bank of Upstate New York v. Wiltbrodt, 154 Misc.2d 260 (Sup.Ct. Alb.Co. 1993). In some circumstances, extensions are often necessary to effect service and to allow for the return of the affidavit of service. For example, where service must be by publication or by use of letters rogatory upon a foreign defendant it is often impractical to expect that service and filing of the affidavit of service can be completed within the specified period of time.

While this committee agrees with the need for clarification that the court is empowered to extend the time in which service and filing of the affidavit of service are to be completed. This bill is seriously flawed.

First, it eliminates the deemed dismissal, and replaces it with a motion to dismiss that the court "shall" grant except on good cause shown. This shifts the burden to the unserved defendant to learn of the action pending, even though no notice was afforded to that defendant, and then move for dismissal. Additionally, years may pass without any dismissal of the action. Finally, there is no practical way to police these cases as, contrary to the federal system, there is no immediate assignment of the case to a judge. Even if there were an assignment to a judge, state court judges often carry between 500 and 1200 cases on their calendars. Appropriate policing regarding unserved defendants cannot practically be accomplished.

In order to preserve the "deemed dismissal," any bill allowing for the court to extend the time in which to accomplish service or filing of the affidavit of service must contain a firm date by which an application for extension must be made. The committee feels that the preferable view is that all applications for extension of time to serve should be made before the period has expired. A plaintiff who has difficulty accomplishing service should know before this period has expired of the difficulty and need for extension. Similarly, the committee feels that applications for extension of time to file the affidavit of service should be made within a very short period of time after the expiration of the statutory time to serve and file. Again, a plaintiff who has not been able to accomplish the filing of the affidavit of service within the statutory time should know of this difficulty immediately after the expiration of the period without the required filing. In any event, this bill contains no cutoff date at all.

A second problem relates to the statute of limitations. Ch. 216 of the Laws of 1992 was designed to afford defendants with notice of suit within a specified period after the statute of limitations had expired. That period can be as short as 15 days after expiration of the statute in the case of article 78 proceedings with short statutes. The proposed bill would permit the court to cause service to be made later than the outside date contemplated in Ch. 216 of the Laws of 1992, thus, as a practical effect, giving the court discretion to extend the statute of limitations, contrary to long standing New York policy codified in CPLR 201. The proposed bill gives no regard for making this important and sweeping policy change.

In short, while the committee agrees with the need for some clarifying legislation, the proposed bill will unfairly shift the burden of moving for dismissal to unserved defendants, and allow the pendency of actions with unserved defendants indefinitely, and potentially run counter to New York policy on the statute of limitations.

For the above reasons, this bill is DISAPPROVED.

Person Who Prepared the Report: Sharon Stern Gerstman, Esq.

Chair of the Committee: Paul H. Aloe, Esq.