On November 26, 2024, Justice Chan of the New York County Commercial Division issued a decision in WealthUnion Ventures LLC v. Yan, 2024 NY Slip Op. 34222(U), holding that an error or omission in an affidavit of service was a jurisdictional defect, explaining:
When effectuating alternative service pursuant to CPLR 308(2), service must be made upon a person of suitable age and discretion at defendant’s actual dwelling place or usual place of abode. This type of alternative service, when accomplished through a doorman, will not be deemed proper unless that doorman denied the process server entry into the building to access defendant’s apartment. Denial of entry is a critical fact in this analysis because it is under such circumstances that the outer bounds of the defendant’s actual dwelling or place of abode will be deemed to extend to the location at which the process server’s progress was arrested.
Here, there is no meaningful dispute that WcalthUnion’s original affidavit of service filed on December 26, 2023, does not state whether or not the process server was denied entry or access to Yan’s dwelling on the date of attempted service. This omission is normally fatal to the issue of establishing proper service of process and thus personal jurisdiction. WealthUnion nevertheless maintains that its process server was denied entry. And in making this assertion, it relics entirely on its process server’s newly sworn affidavit of service, dated March 7, 2024, regarding the December 21 Service (the March 2024 Affidavit), which apparently attempts to correct the omission of a fact left out of the original affidavit of service.
Critically, the omission of any showing of an attempt by a process server to gain entrance to an actual dwelling or place of abode is not a mere irregularity that the court may simply disregard upon the filing of a purportedly corrected affidavit of service. Rather, as noted above, this is a jurisdictional defect that cannot be overlooked.
Despite the jurisdictional defect of its process server’s affidavit of service for the December 21 Service, WealthUnion neither sought leave to amend or supplement the original affidavit, nor submitted an affidavit from its process server explaining his change to his original affidavit of service reflected in the March 2024 Affidavit. For this reason, the court is foreclosed from blindly accepting the March 2024 Affidavit as a basis to Yan’s motion to dismiss.
To be sure, the court, in its discretion, may accept an amended affidavit of service if a substantial right of a party is not prejudiced. On these facts, however, it would be prejudicial to accept the March 2024 Affidavit at this stage given the jurisdictional nature of previously omitted information. At minimum, Yan must have an opportunity to challenge the process server’s representation that he was denied entry to Yan’s actual dwelling or place of abode prior to serving the building’s doorman. As a result, before resolving Yan’s motion, a traverse hearing regarding the December 21 Service is warranted.
(Internal quotations and citations omitted).