B.M.-F., Plaintiff, v. E.M., Defendant. (2026)

The following papers were considered in connection with Plaintiff's ex-parte motion by order to show cause (hereinafter "Motion Sequence No. 1"), dated August 5, 2026, seeking the entry of an Order seeking final relief (hereinafter "Final Relief") as follows:

1. That Plaintiff shall execute service of process of the Summons with Notice upon Defendant by affixing the Summons with Notice to the door of either the actual place of business, dwelling place or usual place of abode of the Defendant and by mailing the same to the last known address of Defendant; or, in the alternative

2. An Order extending time for Service upon Defendant for an additional 120 days;

3. An Order allowing Plaintiff to execute substitute service of the Summons with Notice upon Defendant in accordance with CPLR § 308(2), CPLR § 308(3), CPLR § 308(4) or CPLR § 308(5);

4. Any other and further relief as this Court may deem just and necessary;

Plaintiff further seeking immediate interim relief pending the outcome of Motion Sequence No. 1, including the following (hereinafter "Interim Relief"):

"ORDERED, that Plaintiff shall execute service of process of the Summons with Notice upon Defendant by affixing the Summons with Notice to the door of either the actual place of business, dwelling place or usual place of abode of the Defendant and my mailing the same to the last known address of Defendant;

ORDERED, the Plaintiff shall execute service of the Summons with Notice upon Defendant in accordance with CPLR § 308(2), CPLR § 308(3), CPLR § 308(4) or CPLR § 308(5)."

PAPERS DOC. NO.

Order to Show Cause/Attorney Affirmation in Support  ¹ /Plaintiff's Affidavit

In Support/Exhibits 1-2/Proposed Order 1-6

Relevant Factual and Procedural History

On July 17, 2025, Plaintiff commenced this matrimonial action with the filing of a summons with notice, which sought the dissolution of the parties' marriage pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 170(7), and other ancillary relief (hereinafter "Summons").² Simultaneously, Plaintiff filed the following matrimonial notices: (1) notice of continuation of health care coverage; (2) notice of guideline maintenance; and, (3) notice of automatic orders (hereinafter "Matrimonial Notices").³ Of note, no affidavits/affirmations of service regarding either the Summons or Matrimonial Notices were thereafter filed on NYSCEF.

On August 5, 2026, Plaintiff filed a request for judicial intervention,⁴ along with Motion Sequence No. 1,⁵ seeking the above-referenced Final Relief and Interim Relief, all on an ex-parte basis. Notably, in support of Motion Sequence No. 1, Plaintiff filed an affidavit in her own name (hereinafter "Plaintiff's Affidavit");⁶ an attorney affirmation in Plaintiff's counsel's name (hereinafter "Attorney Affirmation");⁷ and, two (2) exhibits being identified as exhibit "1", with a description on NYSCEF of "Summons" and exhibit "2", with a description on NYSCEF of "Proof of Due Diligence" (hereinafter "Supporting Exhibits").⁸ The same date, the Court conformed Motion Sequence No. 1,⁹ denying the Interim Relief in its entirety, and accepting Motion Sequence No. 1 as an ex-parte application, with no need to provide a briefing schedule, thereby accepting August 5, 2026 as the return date of Motion Sequence No. 1.

No other submissions have been filed regarding Motion Sequence No. 1.

Legal Analysis

A. Defective Attorney Affirmation.

It is well-settled in New York State that "moving papers generally consist of three items: (1) a notice of motion or order to show cause; (2) affidavits and affirmations with exhibits; and (3) a memorandum of law" (David D. Siegel, New York Practice § 246 [6th ed 2018]). Failure to include "an affidavit by someone with personal knowledge of the pertinent facts" compels summary denial of the motion (Yaffe v. Shkreli, 187 AD3d 592 [1st Dept 2020]; United Talmudic Academy of Kiryas Joel v. Khal Bais Halevi Religious Corp., 232 AD2d 547 [2d Dept 1996]).

Pursuant to New York Civil Practice Law and Rules (hereinafter "CPLR") § 2106:

"(a) The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury may be used in an action in New York in lieu of and with the same force and effect as an affidavit Such affirmation shall be in substantially the following form:

"I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, except as to matters alleged on information and belief and as to those matters I believe to be true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)" [emphasis added] (CPLR § 2106).

The Court of Appeals has provided useful guidance with respect to the way courts are to interpret statutes:

" 'It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature' (Patrolmen's Benevolent Assn. v. City of New York, 41 NY2d 205, 208 [391 N.Y.S.2d 544, 359 N.E.2d 1338 (1976)]; see also, *843 Longines-Wittnauer v. Barnes & Reinecke[, Inc.], 15 NY2d 443, 453 [261 N.Y.S.2d 8, 209 N.E.2d 68 (1965)]). As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. As we have stated: 'In construing statutes, it is a well-established rule that resort must be had to **410 the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning' (Tompkins v. Hunter, 149 NY 117, 122—123 [43 N.E. 532 (1896)]; see also, Matter of Raritan Dev. Corp. v. Silva, 91 NY2d 98 [667 N.Y.S.2d 327, 689 N.E.2d 1373 (1997)])" (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998]).

In examining the words employed by the Legislature in the applicable statute, CPLR § 2106 includes the following relevant language, "[s]uch affirmation shall be in substantially the following form." "In the absence of contrary legislative intent or any qualifying language in the statute, the word 'shall' is deemed to be mandatory" (Saunders v. Smith, 99 AD2d 671 [4th Dept 1984]; see also, 97 NY Jur. 2d Statutes § 17). Notably, the second portion of the highlighted section of the statute is the word "substantially," which means "in a substantial manner" (see http://www.merriam-webster.com/dictionary/substantially), with the word "substantial" meaning "largely but not wholly that which is specified" (see http://www.merriam-webster.com/dictionary/substantial). Lastly, the adjective "substantially"/"substantial" in the phrase "substantially the following form" describes the noun "form," which means "the shape and structure of something as distinguished from its material" (see https://www.merriam-webster.com/dictionary/form).

As the Legislature included the word "shall" in CPLR § 2106, this Court determines that the word "shall" was intended by the Legislature to be a mandatory requirement, for which this Court has no discretion to overlook. Moreover, this Court determines the word "substantially"/"substantial" to mean largely but not wholly that which is specified. This Court finds that, when read within the statute, "in substantially the following form," substantially acts as an adjective describing the "form" of the following required admonition, meaning its structure as opposed to its substance. Collectively, this Court determines that the meaning of "in substantially the following form" is that an affiant need not use the exact verbiage of the admonition as specified within CPLR § 2106, so long as the substance of the admonition provides the following: (1) the affiant affirms on a particular date; (2) under the penalties of perjury; (3) under the laws of New York; (4) which may include a fine or imprisonment; (5) that the foregoing is true except as to matters alleged on information and belief and as to those matters I believe to be true; and, (6) that the affiant understands that the document may be filed in an action or proceeding in a court of law.

This interpretation is supported by recent decisions throughout the State of New York, which confirm that an affirmation which fails to comport with the requirements of CPLR § 2106, shall be inadmissible and must be disregarded by the Court (see Great Lakes Insurance SE v. American Steamship Owners Mutual Protection and Indemnity Association Inc., 228 AD3d 429 [1st Dept 2024]). "Subsequent to January 1, 2024, courts have found that a statement simply affirming the following under the penalties of perjury fails to acknowledge the laws of New York and the possibility of fines or imprisonment and as a result is not in admissible form and cannot be relied upon. Inasmuch as the oath is not something the court is permitted to infer and the purpose of the requirement impresses on the witness the gravity of his factual account, an affirmation lacking the language that CPLR 2106 now requires fails to demonstrate an appreciation for that gravity and is ultimately not a verification at all." (Gransard v. Hutchinson, 2024 WL 1957086 [Supreme Court NY County, Latin J.][internal citations and quotation marks omitted] affd for the reasons stated by Latin, J., Gransard v. Hutchinson, 227 AD3d 491 [1st Dept 2024]).

In support of Motion Sequence No. 1, Plaintiff submits the Attorney Affirmation, which begins with the following language: "[Redacted], an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following:".¹⁰ Clearly, Plaintiff's Attorney Affirmation fails to include the following portions of the required admonition: "under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, except as to matters alleged on information and belief and as to those matters I believe to be true, and I understand that this document may be filed in an action or proceeding in a court of law."

Having found the admonition included within CPLR § 2106 to be a mandatory statutory requirement for a movant to submit an affirmation in lieu of an affidavit; and, that such admonition must include, in some substantial form, all six aforementioned requirements, this Court determines that the Attorney Affirmation provides only one of the six requirements of a proper CPLR § 2106 admonition. As the Attorney Affirmation fails to contain the mandatory language of CPLR § 2106 in complete and substantial form, it cannot be accepted in lieu of an affidavit and must be rejected. Consequently, Plaintiff's Attorney Affirmation will be disregarded by this Court.

However, Plaintiff's Affidavit is properly executed and notarized, and same shall survive for purposes of review with respect to the application included within Motion Sequence No. 1.

B. Plaintiff Fails To Provide Proof In Admissible Form Of Any "Due Diligence" Required To Satisfy Request For Alternate Service.

"CPLR 308(5) vests a court with the discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308(1), (2), and (4) are 'impracticable' " (Astrologo v. Serra, 240 AD2d 606 [2d Dept 1997]). Whether service is "impracticable, 'depends on the facts and circumstances surrounding each case' (MTGLQ Investors, L.P. v. Mayers, 209 AD3d 1009 [2d Dept 2002]; citing Wells Fargo Bank, NA v. Patel, 175 AD3d 1350 [2d Dept 2019], quoting Liebeskind v. Liebeskind, 86 AD2d 207 [1st Dept 1982]). "Although impracticality does not require a showing of actual attempts to serve parties under every method in the aforementioned provisions of CPLR § 308, the movant is required to make competent showings as to actual efforts made to effect service" (Joseph II. V. Luisa JJ, 201 AD3d 43 [3d Dept 2021] [internal citations omitted]).

The Courts have continuously focused on a movant's "due diligence" or lack thereof, as a barrier to issue a court order for substituted service, finding consistently that such an order is obtainable only upon a showing that service "could not be carried out by personal delivery despite the use of due diligence" (Rae v. Marciano, 227 AD3d 738 [2d Dept 2024]). "Once the impracticability standard is satisfied, due process requires that the method of service be 'reasonably calculated, under all the circumstances, to apprise' the defendant of the action" (Contimortgage Corp. v. Isler, 48 AD3d 732 [2d Dept 2008], quoting Mullane v. Central Hanover Bank & Trust Co, 70 S.Ct. 652 [1950]). "In order to be constitutionally adequate, the method of service need not guarantee that the defendant will receive actual notice," and "Indeed, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits" (Harkness v. Doe, 261 AD2d 846 [4th Dept 1999] [internal citations omitted]). "In an action for a divorce, New York State Domestic Relations Law § 232 permits substituted service pursuant to CPLR 308 by court order upon a showing that personal delivery of the summons and complaint upon the defendant could not be effected despite efforts made with due diligence" (Florestal v. Coleman-Florestal, 124 AD3d 578 [2d Dept 2015]).

Here, Plaintiff seeks leave of this Court to serve Defendant by the methods outlined in CPLR § 308 (2-5). However, within Plaintiff's Affidavit, the only information provided to this Court is as follows:

"6. I first mailed a letter with the divorce documents and stipulation to the Defendant on August 6, 2025, with the thought that the Defendant would agree to the divorce as we have not been together since 2000. The mail was then returned as return to sender.

7. A postal search through my attorney was done on November 20, 2025. See as

8. I, through the help of the sheriff's office, have made multiple attempts to personally serve Defendant. Defendant knows that I have been attempting to effectuate service but has refused to simply accept the pleadings.

9. Upon information and belief, Defendant has been present at the address listed on the Affidavit of Due Diligence during all of the process server's attempts to effectuate service, but has made the choice to willfully evade service.

10. At this juncture, it is clear that Defendant is never going to be personally served with the Summons and Notice of Automatic Orders. I have spent an immense amount of money and have wasted ample time in an attempt to effectuate proper service upon Defendant. Defendant's spiteful behavior and willful avoidance of the inevitable only serves as a stalling tactic to frustrate justice."¹¹

Moreover, while Plaintiff claims (by NYSCEF description) that the Supporting Exhibits filed include a document showing "proof of due diligence", a review of both Supporting Exhibits shows that no exhibits were actually uploaded to NYSCEF for this Court's review, only cover pages which indicate "Exhibit 1" and "Exhibit 2" with no other information, and certainly no affidavit and/or affirmations which show the due diligence completed pertaining to the attempts to effectuate personal service of the Summons and Matrimonial Notices on the Defendant. Therefore, the only document that this Court can review in making a determination regarding the relief requested within Motion Sequence No. 1 is Plaintiff's Affidavit.

While Plaintiff's Affidavit makes a general claim of efforts made to serve Defendant personally, the document fails to state when these efforts were made, who made them, where the service was attempted, and fails to confirm that Plaintiff herself was the one who made these attempts, thereby preventing this Court from confirming that she has the basic personal knowledge required to confirm the unknown attempts at effectuating service (see Markoff v. S. Nassau Cmty. Hosp., 91 AD2d 1064 [2d Dept 1984] "[an] affidavit of service annexed to plaintiff's supporting papers indicated that only 'one attempt had been made at delivery to a person of suitable age and discretion and mailing to the individual defendants at the premises of the defendant hospital.' Clearly, such supporting papers were insufficient because they failed to set forth factual allegations to establish, for example, what steps plaintiff had taken to effect service pursuant to the prescribed methods, when such steps were undertaken, and/or why such steps were not practicable under the particular facts and circumstances.").

Upon review of the submissions by Plaintiff, the Court finds that Plaintiff has neither met the impracticability nor due diligence standards set forth by the Appellate Division, Second Department, given that the only admissible evidence before this Court is Plaintiff's Affidavit, which fails to confirm with specificity any attempts at personal service of the Summons and Matrimonial Notices on the Defendant. These submissions fall woefully short of the necessary burden of seeking leave from this Court for substituted service, and therefore the request for leave for substituted service pursuant to CPLR § 308(2-5) is denied without prejudice. (Florestal v. Coleman-Florestal, 124 AD3d 578 [2d Dept 2015]).

C. Request For Extension of Time To Serve.

It is well-established that courts may extend the plaintiff's time to serve process under CPLR § 306-b even after an order of dismissal, so long as judgment has not yet been entered. Extensions of time have even been granted after entry of judgment, in situations where motions were pending before the Court seeking such relief. (PNC Bank, N.A. v. Sarfaty, 225 AD3d 721 [2d Dept 2024]). Furthermore, CPLR § 2004 permits, "except where otherwise expressly prescribed by law, the Court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." However, as set forth herein-above, the only admissible document that can be considered in support of Plaintiff's application for an extension of time to serve the Defendant is Plaintiff's Affidavit, which fails to make any substantive argument, or provide any relevant case law to support an extension of Plaintiff's time to serve, especially considering the Summons and Matrimonial Notices were filed over a year ago.

Consequently, Plaintiff's request for a 120-day extension to serve Defendant is denied, without prejudice.

D. Other Relief.

To the extent relief is not granted or otherwise addressed herein, it is hereby denied.

ACCORDINGLY, IT IS HEREBY:

ORDERED that Motion Sequence No. 1 is hereby denied without prejudice; and it is further

ORDERED that to the extent any relief requested has not been granted or otherwise addressed herein, it is hereby denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: August 25, 2026

White Plains, New York

HON. JAMES L. HYER, J.S.C.

FOOTNOTES

1.   Note: For the reasons set forth in more detail herein-below, Plaintiff's Attorney Affirmation in Support has been disregarded by the Court, as such document fails to include a proper admonition pursuant to CPLR § 2106.

2.    See, NYSCEF Doc. No. 1.

3.    See, NYSCEF Doc. Nos. 2-4.

4.    See, NYSCEF Doc. No. 12.

5.    See, NYSCEF Doc. Nos. 6-11.

6.    See, NYSCEF Doc. No. 8.

7.    See, NYSCEF Doc. No. 7.

8.    See, NYSCEF Doc. Nos. 9-10.

9.    See, NYSCEF Doc. No. 14.

10.    See, NYSCEF Doc. No. 7.

11.    See, NYSCEF Doc. No. 8 ¶¶ 6-10.

James L. Hyer, J.