Matter of State of New York v Robert C., 2014 NY Slip Op 00257 (3d Dept. 2014)
It is common maxim that the failure to comply the service provisions of an order to show cause is deemed a jurisdictional defect. Well, the Third Department (in the context of an MHL Article 10 proceeding) feels otherwise.
“Although the order to show cause required service upon respondent and his assigned counsel by February 7, 2008, service was only effected upon counsel by that date. Respondent was not served until February 11, 2008”
“An extension was available under another statute, however. CPLR 2004 provides that “a court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed” (CPLR 2004 [emphasis added]). Although petitioner did not file a written motion for an extension of the time for service, petitioner did request that the original service be deemed sufficient. Treating that request as an application for an extension, and noting the factors relied upon by Supreme Court (Hall Jr., J.) as well as the meritorious nature of the petition, under CPLR 2004 it appears that good cause was shown for an extension of the time for service included in the order to show cause. Although it is unclear whether Supreme Court granted an extension on that basis, we grant such an extension and deem [*3]the petition timely served nunc pro tunc”
