Bulletin: NY000151

Dear Associates:

Chapter 476 of the Laws of 1997 prospectively repeals § 306-b of the CPLR (Civil Practice Law and Rules), effective January 1, 1998, and replaces the section with kinder, gentler language. The previous formulation provided for "deemed dismissal" against a defendant without the necessity of court intervention, in the event that proof of service, a notice of appearance or an answer for that defendant had not been filed with the court within 120 days of filing the action or proceeding. The new section provides that service must be made within 120 days (or if the statute of limitations is four months or less, no later than 15 days after the date the statute of limitations expires). Failure to serve on a timely basis can be grounds for dismissal without prejudice against such defendant, but only after a motion has been made. If the plaintiff shows good cause, the time to serve may be extended by the court.

The new statute does not eliminate the necessity of filing affidavits of service, but our concern in actions filed after January 1, 1998 will be that proof of service be in the court file at some point in time where there has been no appearance or answer filed with the court. From a foreclosure practitioner's point of view, affidavits of service can be filed with the motion to appoint the referee to compute.

Our 1994 chart for tracking important statutory changes regarding service and notice of pendency issues is now updated as follows:

(a) before July 1, 1992

• Actions commenced by service of process
  
• Notice of Pendency filed before commencement not effective unless at least one defendant was served within 30 days of the filing of the Notice

(b) From July 1, 1992 to December 31, 1992

• as provided in either (a) above or (c) below
  

(c) From January 1, 1993 to July 25, 1994

• Action commenced by filing with court
  
• Action deemed dismissed without prejudice against any defendant for whom an affidavit of service, notice of appearance or answer has not been filed within 120 days of filing and Notice of Pendency not effective unless at least one defendant was served within 30 days of the filing of the Notice.

(d) From July 26, 1994 to December 31, 1997

• Action commenced by filing with court
  
• Action deemed dismissed without prejudice against any defendant for whom and affidavit of service, notice of appearance or answer has not been filed within 120 days of filing and Notice of Pendency not effective unless at least one defendant was served within 30 days of the filing of the Notice.

(e) From January 1, 1998

• Action commenced by filing with court
  
• Action may be dismissed without prejudice against any defendant not served within 120 days of filing; Time to serve may be extended by Court for good cause or in the interests of justice; and Notice of Pendency not effective unless at least one defendant was served within 30 days of the filing of the Notice.