On May 23, 2025, Justice Jamieson of the Westchester County Commercial Division issued a decision in Rotonde v. Stewart Title Ins. Co., 2025 NY Slip Op. 50862(U), dismissing an action for failure properly to serve the defendant, explaining:
The Court begins with the motion to dismiss for lack of jurisdiction. Plaintiff submits to the Court a document that purports to be an affidavit of service. It says merely that Dall was served by serving “BRANDON COOMBS. MALE, 1601bs, BLACK SKIN, BLACK HAIR, 21- 35yrs old.” The document does not state when Dall was allegedly served by serving Coombs. The document does not state where Dall was allegedly served. The document does not state who Coombs is (doorman, roommate, neighbor, delivery person, random stranger, etc.). The document does not state what documents were delivered to Coombs. The document does not state why Coombs was served on Dall’s behalf. As CPLR § 308(2) requires that the affidavit of service shall identify such person of suitable age and discretion and state the date, time and place of service, the Court finds that this purported affidavit of service does not demonstrate that Dall was served pursuant to this section of the CPLR.
Nor does the document state that the mailing required by CPLR § 308(2) was sent to Dall. In apparent acknowledgement of the mailing requirement, plaintiff submits to the Court evidence that he sent some documents to Dall by UPS in December 2024, which appears to be well before he served Coombs (or at least well before the date on the purported affidavit of service). Yet this does not constitute compliance with CPLR § 308(2). This section, in relevant part, states that if personal service is not made, a party has to follow a second step: mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend personal and confidential and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, 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.
Plaintiff did not do this. He did not mail the summons by first class mail; he did not put it in the appropriate envelope; he did not mail it within 20 days of the delivery; and he did not file the proof of such service. The law is well settled that personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with. The mailing requirement of CPLR 308(2) is to be strictly construed. The failure to comply with CPLR 308(2)’s mailing requirement is a jurisdictional defect warranting a finding as a matter of law that service thereunder was invalid. Accordingly, the Court finds that service was invalid, and for this reason alone, Dall must be dismissed from the action.
(Internal quotations and citations omitted).