Brafman & Assocs., P.C. v. Balkany

• Decision Date: 07 January 2021
• Docket Number: Index No. 650188/19,12809,Case No. 2019-03381
• Citation: 139 N.Y.S.3d 199,190 A.D.3d 453
• Parties: BRAFMAN & ASSOCIATES, P.C., Plaintiff–Respondent, v. Milton BALKANY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 453
139 N.Y.S.3d 199

BRAFMAN & ASSOCIATES, P.C., Plaintiff–Respondent,
v.
Milton BALKANY, Defendant–Appellant.

12809
Index No. 650188/19
Case No. 2019-03381

Supreme Court, Appellate Division, First Department, New York.

ENTERED: January 7, 2021

139 N.Y.S.3d 200

Michael P. Lagnado, New York, for appellant.

Jaroslawicz & Jaros PLLC, New York (David Tolchin of counsel), for respondent.

Manzanet–Daniels, J.P., Kapnick, Moulton, Gonza´lez, Scarpulla, JJ.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 11, 2019, which denied defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(8), unanimously affirmed, with costs.

Contrary to plaintiff's assertion, defendant did not waive the defense of improper service. Having added it to his amended answer within the time frame for amendments as of right under CPLR 3025(a), its omission from his original response does not constitute waiver (see Iacovangelo v. Shepherd, 5 N.Y.3d 184, 800 N.Y.S.2d 116, 833 N.E.2d 259 [2005] ). Were we to address plaintiff's unpreserved arguments concerning CPLR 3211(e), we would reject them. The statute makes clear that defendant's 60–day clock for a motion to dismiss on grounds of improper service began to run from the date of his amended answer, not from his original response, when the objection had not yet been raised.

However, plaintiff established that it served defendant by substituted service. "There are no rigid standards governing the due diligence requirement for substituted service pursuant to CPLR 308(4)" (

139 N.Y.S.3d 201

Bank of America, N.A. v. Budhan, 171 A.D.3d 622, 622, 99 N.Y.S.3d 264 [1st Dept. 2019], citing Bank Leumi Trust Co. of N.Y. v. Katzen, 192 A.D.2d 401, 596 N.Y.S.2d 368 [1st Dept. 1993] ), and plaintiff's process server's successive attempts to serve defendant personally at various times of the day, on different days of the week (a Monday, a Wednesday, and a Friday) satisfied the due diligence...