In the Matter of Stern v. Garfinkle
| Decision Date | 19 October 2005 |
| Docket Number | 2005-09520. |
| Citation | 2005 NY Slip Op 07726,22 A.D.3d 694,805 N.Y.S.2d 395 |
| Parties | In the Matter of STEVEN H. STERN, Appellant, v. ROBERT L. GARFINKLE et al., Respondents, and FRANK GARGANO, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the final order is affirmed, without costs or disbursements.
The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with (see Matter of McGreevy v. Simon, 220 AD2d 713 [1995]; Matter of Bruno v. Ackerson, 39 NY2d 718 [1976]). The order to show cause in the instant proceeding provided that personal service was to be made upon the individual respondents on or before September 19, 2005. The space provided for indicating a date by which alternative service, i.e., overnight mail, was to be made was left blank. Nevertheless, the petitioner served the order to show cause by overnight mail.
The absence of a date by which overnight mail service was to be made had the effect of striking the provision for alternative service. Thus, the mode of service utilized by the petitioner was not in strict compliance with the order to show cause and the Supreme Court properly determined that it was without jurisdiction to entertain the proceeding (see Matter of O'Daniel v Hayduk, 59 AD2d 706, 707 [1977], affd 42 NY2d 1062 [1977]).
To continue reading
Request your trial
-
In re Theodore T.
...and the Supreme Court properly determined that it was without jurisdiction to entertain the proceeding ( see Matter of Stern v. Garfinkle, 22 A.D.3d 694, 805 N.Y.S.2d 395; Matter of New York Cent. Mut. Fire Ins. Co. v. Czumaj, 9 A.D.3d 833, 834, 780 N.Y.S.2d 254). The Supreme Court has broa......
-
Hernandez v. Mueller
...N.Y.2d 718, 384 N.Y.S.2d 765, 349 N.E.2d 865, aff'g 51 A.D.2d 1051, 381 N.Y.S.2d 522 [2d Dept.1976]; Matter of Stern v. Garfinkle, 22 A.D.3d 694, 694-95, 805 N.Y.S.2d 395 [2d Dept.2005]; Kue Mee Realty Corp. v. Louie, 295 A.D.2d 263, 263-64, 743 N.Y.S.2d 863 [1st Dept.2002]; Turkish v. Turk......
-
Wermuth v. Mamaroneck Towers LP
...and must be strictly complied with (see El Greco Soc of Visual Arts, Inc. v Diamantidis, 47 A.D.3d 929 [2d Dept 2008]; Stern v Garfinkle, 22 A.D.3d 694, 694-695 [2d Dept 2005]). Further, where the court orders service by a particular date, "all components of service must be accomplished by ......
-
Rite Aid of N.Y. v. Smith St. Realty, LLC
... ... of Default and Thirty (30) Day Notice to Cure" that the ... plaintiff served in this matter which contains the following ... language: ... PLEASE TAKE FURTHER NOTICE that any response or ... order to show cause is jurisdictional in nature and must be ... strictly complied with (Stern v. Garfinkle, 22 ... A.D.3d 694,694, 805 N.Y.S.2d 395, 395, citing Matter of ... McGreevy v ... ...