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Failure to file the affidavit of service not jurisdictionalJune 10, 2017

Buist v Bromley Co., LLC, 2017 NY Slip Op 04417 (2d Dept. 2017)

” The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion'” (Matter of Meighan v Ponte, 144 AD3d 917, 918, quoting Khan v Hernandez, 122 AD3d 802, 803; see CPLR 2001, 2004). Here, there is no reason to believe that the defendants did not properly and timely serve Minard in compliance with the so-ordered stipulation dated December 8, 2014. Moreover, the defendants promptly requested permission to correct the irregularity in filing the affidavit of service after learning that it was filed in the wrong office, and there was no allegation or indication of prejudice to the plaintiff as a result of the requested correction. Under these circumstances, the Supreme Court improvidently exercised its discretion in denying the defendants’ application for an extension of time to file the affidavit of service in the Clerk’s office, and thereupon denying their motion for summary judgment on the ground that they failed to file proof of service in that office

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