Calabrese v. Springer Personnel of New York, Inc.
| Decision Date | 24 October 1988 |
| Citation | 534 N.Y.S.2d 83,141 Misc.2d 566 |
| Parties | Ben CALABRESE, Plaintiff, v. SPRINGER PERSONNEL OF NEW YORK, INC. and Larry Ceccarelli, Harvey Cohen and George Sieber, Defendants. |
| Court | New York City Court |
Flashner & Eisenstat, New York City, for plaintiff.
Taylor Newmark & Rosenberg, New York City, for defendants.
This motion raises the issue of validity of service of papers upon an attorney through a facsimile ("fax") machine.
These machines have been around for many years, but recently they have become so sophisticated and user-friendly that they have become overwhelmingly the method of choice for the transmission of documents in today's world. Indeed their use has become so widespread that business stationery now commonly carries a "fax" telephone number in addition to an ordinary one, and, in common usage, "fax" has been converted into a verb as well as an adjective and noun.
Startling as it may seem, however, no published opinion has been found considering the applicability of fax machines to the conduct of litigation. This motion compels me to do so.
In June of this year I issued a common garden variety of conditional order in this case striking Defendant's answer unless it responded to interrogatories within twenty days of service of a copy of my order. In July Plaintiff's counsel faxed a copy of my order to Defendant's counsel. Defendant's counsel promptly rejected the faxed copy as incompatible with the CPLR, but promised anyhow that interrogatory responses would be forthcoming shortly. And they were indeed mailed in August--eight days late if faxing was valid service of my order. Now it was Plaintiff's counsel's turn--they rejected the interrogatories and noticed the case for inquest. This motion followed seeking to vacate the notice of inquest.
The governing provision of the CPLR providing for service of papers upon an attorney is Rule # 2103(b)(3).
The language of Rule # 2103(b)(3) renders useful a simplified explanation of how faxing functions. At the sending end an operator phones the intended recipient's machine. If the recipient's machine does not give a busy signal, the document is then transmitted and comes out of the recipient's machine in much the same manner as with a copy machine. It then remains in a tray or other container along with prior and subsequent transmissions until picked up by the recipient.
Perhaps, literally reading Rule...
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Rohany v. State
...see also, CPLR 2001; Balancio v. American Opt. Corp., 66 N.Y.2d 750, 497 N.Y.S.2d 360, 488 N.E.2d 106; Calabrese v. Springer Personnel of New York, 141 Misc.2d 566, 534 N.Y.S.2d 83.) Here, no prejudice is alleged. We therefore hold the service For the foregoing reasons, the relief sought he......
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In re Hotel Syracuse, Inc.
...(facsimile of reproduced document admissible if original is in existence and available for production); Calabrese v. Springer, 141 Misc.2d 566, 534 N.Y.S.2d 83 (N.Y.C.Civ.Ct.1988) (service of interlocutory papers via fax machine complies with CPLR 2103(b)). Note also, however, that some sta......
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Schaeffer v. State
...While non-jurisdictional defects may be corrected or disregarded by the Court (CPLR 2001; see, e.g., Calabrese v. Springer Personnel of New York, 141 Misc.2d 566, 534 N.Y.S.2d 83; Williams v. State of New York, 77 Misc.2d 396, 353 N.Y.S.2d 691) where preserved, jurisdictional ones may not. ......
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Ex parte Tuck
...1110 (Fla.1992), Fitcher v. Board of Environmental Protection, 604 A.2d 433 (Me.1992), and Calabrese v. Springer Personnel of New York, Inc., 141 Misc.2d 566, 534 N.Y.S.2d 83 (N.Y.City Civ.Ct.1988). Tuck argues that the focus of the issue is not on the reliability of facsimile machines and ......