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CourtAlert - Tip of the Week
CPLR 316 Review
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September 19, 2013
CPLR 316 Review
One of our clients recently called us and asked us how should they point out to
a judge that perhaps they might have overlooked the reading of a rule. We have
been searching for that answer ourselves for the past 13 years and as soon as we
find it we will let everyone know. All kidding aside there are ways that are
built into various court rules that allow for you to make applications to the
judge to correct an oversight. Although it might be the oversight on the judge,
the application should come across as if it might have been your oversight and
not the judge. This particular issue was asked in relation to
CPLR 316 (Service by publication) where a recent order was not consistent with
the rule. We decided to do a little research on this issue and we came across a
Second Department decision that pointed out how the order issued by the trial judge
didn’t comply with the statutory requirements. Under CPLR 316 a party must
publish at least once in each of four successive weeks. The order issued by the
trial judge directed that the summons be published only once. Please see the
below rule:
CPLR 316
(a) Contents of order; form of publication; filing. An order for service of a
summons by publication shall direct that the summons be published together with
the notice to the defendant, a brief statement of the nature of the action and
the relief sought, and, except in an action for medical malpractice, the sum of
money for which judgment may be taken in case of default and, if the action is
brought to recover a judgment affecting the title to, or the possession, use or
enjoyment of, real property, a brief description of the property, in two
newspapers, at least one in the English language, designated in the order as
most likely to give notice to the person to be served, for a specified time, at
least once in each of four successive weeks, except that in the matrimonial
action publication in one newspaper in the English language, designated in the
order as most likely to give notice to the person to be served, at least once in
each of three successive weeks shall be sufficient. The summons, complaint, or
summons and notice in an action for divorce or separation, order and papers on
which the order was based shall be filed on or before the first day of
publication. .
(b) Mailing to accompany publication in matrimonial actions. An order for
service of a summons by publication in a matrimonial action shall also direct
that on or before the first day of publication a copy of the summons be mailed
to the person to be served unless a place where such person probably would
receive mail cannot with due diligence be ascertained and the court dispenses
with such mailing. A notice of publication shall be enclosed.
(c) Time of publication; when service complete. The first publication of the
summons shall be made within thirty days after the order is granted. Service by
publication is complete on the twenty-eighth day after the day of first
publication, except that in a matrimonial action it is complete on the
twenty-first day after the day of first publication.
Each court will have their own local rules on how you make an application for
service by publication. We would like to at least provide the local rule pertaining
to this application for New York County Supreme Court below:
New York County Supreme local rule
A plaintiff may obtain an order ex parte for publication under certain
circumstances. CPLR 316. The plaintiff must submit an affirmation/affidavit in
support, an affidavit of due diligence by a process server, exhibits
demonstrating the results of a search for defendant (Post Office, Surrogate's
Court, Board of Elections, Department of Motor Vehicles, military (in the five
branches)), notice of publication (see Rule 316 (a)), a summons and complaint or
summons with notice, a proposed order in compliance with Rule 316, and a Request
for Judicial Intervention.
If you would like to review the Second department decision mentioned about
please
click here.
Appellate Division Second Department Case Watch
While on the topic of the Second Department we would like to remind our clients
to make sure their pending Second Department case have been added to the
Appellate Division Second Department Watchlist. CourtAlert will notify you of
decisions and scheduled appearances. CourtAlert also provides free optional
lists of appeal and motion decisions at no additional charge. If you need any
further information on this service please click here.
Please also
remember that when a panel has been assigned to an appeal please make sure you
reviews each judge’s bio, which can be found on the above link.
By request to Support@CourtAlert.com
CourtAlert can offer information on every new Notice of Appeal and RADI form
filed in the Second Department. This information is very timely and may be
utilized to generate business opportunities.
We are Committed to Remain the Best!
Izzy Schiller
CourtAlert
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