Ferrito v. Dickson
| Decision Date | 08 August 1990 |
| Parties | Francis FERRITO, Plaintiff, v. Jackie DICKSON, Defendant. |
| Court | New York City Court |
Wilkofsky, Friedman, Karel & Cummins, New York City, for plaintiff.
Plaintiff has submitted for my signature an ex parte order permitting the filing, nunc pro tunc, of the summons and complaint. While matters of this kind are customarily treated as routine, this application is somewhat out of the ordinary. The summons as originally served identified the Court as the "Civil Court of the City of New York, County of Richmond," but summoned defendant "to appear in the Civil Court of the City of New York, County of New York at the office of the Clerk of said Court at 111 Centre Street in the County of New York City and State of New York, ...". After the error had been discovered, plaintiff attempted to correct same by mailing an "amended summons," containing the correct address of the Richmond County Division of the Court, to an attorney who had not formally appeared for defendant.
The Court declines to sign the order. The summons as originally served is defective. Since the defendant has not answered, it can hardly be contended that the defect has been waived. It is doubtful whether there is any such entity as an "amended summons." In any event, an amendment cannot be effected merely by mailing a revised summons to an attorney who has never appeared.
Since the service of a defective summons fails to give the Court jurisdiction over the defendant, it will accomplish nothing to proceed by motion on notice. There is before the Court no action within which a motion may be made.
It appears that the only procedure available to plaintiff is to serve defendant with a proper summons. Since the incident complained of appears to have taken place in 1989, there should be no concern over the statute of limitations.
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Table of Cases
...433 (2d Dept 1973), §28:210 Ferrigno v. General Motors Corp. , 134 AD2d 479, 521 NYS2d 263 (2d Dept 1987), §8:341 Ferrito v. Dickson , 148 Misc2d 101, 559 NYS2d 627 (Civ Ct Richmond Co 1990), §9:101 Ferrizz v. Jahelka , 125 AD2d 537, 509 NYS2d 613 (2d Dept 1986), §18:101 Ferruggia v. Zoning......
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Table of Cases
...433 (2d Dept 1973), §28:210 Ferrigno v. General Motors Corp. , 134 AD2d 479, 521 NYS2d 263 (2d Dept 1987), §8:341 Ferrito v. Dickson , 148 Misc2d 101, 559 NYS2d 627 (Civ Ct Richmond Co 1990), §9:101 Ferrizz v. Jahelka , 125 AD2d 537, 509 NYS2d 613 (2d Dept 1986), §18:101 Ferruggia v. Zoning......
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Summons, Service of Process, and Appearance
...in the caption was not the same as the court identified in the body of the summons where the address was provided. [ Ferrito v. Dickson , 148 Misc2d 101, 559 NYS2d 627 (Civ Ct Richmond Co 1990) (caption identified court as “Civil Court of the City of New York, County of Richmond,” but body ......
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Summons, Service of Process, and Appearance
...in the caption was not the same as the court identified in the body of the summons where the address was provided. [ Ferrito v. Dickson , 148 Misc2d 101, 559 NYS2d 627 (Civ Ct Richmond Co 1990) (caption identified court as “Civil Court of the City of New York, County of Richmond,” but body ......