M.W.O., Plaintiff, v. M.F.T.M., Defendant. (2026)

The following documents, numbered 1 through 2, were considered in connection with the motion of the Plaintiff, dated July 23, 2026, (hereinafter "Motion Sequence No. 1"), seeking the entry of an Order granting the following relief:

1. That the mandatory convention form/form USM-272 letter rogatory annexed hereto be executed and signed by a justice or clerk of this court, and the clerk of this court is directed to affix the official court seal thereto;

2. That Plaintiff's time to serve the amended summons and verified complaint upon the Defendant in the Republic of Colombia pursuant to CPLR § 306-b is hereby extended nunc pro tunc from the original July 2026 deadline for an additional one hundred and twenty (120) days from the date of this Order, or until such time as the Central Authority of Colombia completes or returns service of process; and

3. That Plaintiff is authorized to transmit the executed documents via ABC Legal Service to the Central Authority of Colombia for service upon the Defendant [Redacted], Colombia.

PAPERS DOC. NO.

Order to Show Cause/Affidavit in Support 1-2  ¹

Relevant Factual and Procedural Background

On November 26, 2025, Plaintiff commenced this action with the filing of a summons with notice,² seeking the entry of a judgment annulling the parties' marriage.

On March 6, 2026, Plaintiff filed an amended summons,³ seeking the entry of a judgment of divorce dissolving the parties' marriage pursuant to an asserted irretrievable breakdown of the parties' relationship pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 170(7); and filed a verified complaint (hereinafter "Complaint"),⁴ seeking the same relief.

On July 23, 2026, Plaintiff filed a request for judicial intervention with Motion Sequence No. 1,⁵ seeking the entry of an order granting the above-referenced relief. In support of his application, Plaintiff filed only one document being an affidavit of Plaintiff including, in its entirety, the following:

"M. W. O., being duly sworn, deposes and says:

1. I am the Plaintiff Pro Se in this action. I submit this affidavit in support of my application for an Order: (a) extending my time to complete service under CPLR § 306-b nunc pro tunc for an additional 120 days, and (b) executing the attached Letters Rogatory.

2. This is an action for divorce based on the irretrievable breakdown of the marriage under DRL § 170(7).

3. I commenced this action by filing an Amended Summons with Notice and Verified Complaint on March 6, 2026, under Index No. [Redacted].

4. The Defendant, M. F. T. M., is a citizen of Colombia and resides at: [Redacted], Colombia.

5. Because Defendant resides in Colombia, standard local U.S. service of process is physically impossible.

6. Colombia is a member of the Inter-American Convention on Letters Rogatory. The Central Authority of Colombia strictly requires a formal Letter Rogotory (Form USM-272) signed by a Justice or Clerk of this Court with the official seal.

7. Good cause exists under CPLR § 306-b. The standard 120-day service window from my March 6, 2026 filing recently expired on July 4, 2026. An extension nunc pro tunc is required because it is completely impossible to complete the international treaty process through the Colombian Central Authority within the standard timeframe.

8. An extension is heavily in the interest of justice. The action has meritorious basis, the delay is caused solely by international treaty law logistics, and the Defendant will suffer zero legal prejudice.

9. I intend to use ABC Legal Services to formally transmit the signed, sealed court documents to Colombia as soon as they are executed by this Court.

10. No previous application for the relief requested herein has been made to this or any other Court."

On July 24, 2026, Motion Sequence No. 1 was conformed,⁶ directing that as an ex parte application the motion was deemed fully submitted as of July 24, 2026, and a decision would be entered.

No further submissions were filed pertaining to Motion Sequence No. 1.

Legal Analysis

A. Plaintiff's Requests Pertaining to Letter Rogatory.

Two of the three prongs of relief sought by Plaintiff in Motion Sequence No. 1 pertaining to a letter rogatory must be denied. While both Plaintiff's order to show cause and affidavit assert that a letter rogatory is attached to the application, no such document was attached preventing this Court from reviewing the document sought to be signed. Accordingly, based upon the foregoing, this Court must deny the relief requested in prongs 1 and 3 of Motion Sequence No. 1.

B. Plaintiff's Request for Extended Time To Serve.

In order to evaluate Plaintiff's request for an order granting extended time to serve pleadings upon Defendant, this Court will engage in a review of service requirements pertaining to matrimonial actions commenced in New York State, as well as when service may be effectuated in such actions pursuant to The Inter-American Convention on Letters Rogatory, Jan. 30, 1975, (hereinafter "Initial Convention"), and Additional Protocol, May 8, 1979 (hereinafter "Additional Protocol"), reprinted after 28 U.S.C.A. § 1781, (hereinafter collectively "Inter-American Convention"). The Court will then evaluate the law pertaining to requests for an extension to serve and if same is warranted here.

1. New York State Service Requirements For Matrimonial Actions

An action for divorce must be served upon Defendant personally, unless alternate service is permitted, "In an action for a divorce, New York State Domestic Relations Law § 232 permits substituted service pursuant to New York State Civil Practice Law and Rules (hereinafter "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]). CPLR § 313 then offers the following directive pertaining to service of a person residing outside New York State, "A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction."

However, a litigant may request an order permitting alternate service when serving within or without this State, "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 to 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]).

2. The Inter-American Convention

The Inter-American Convention affords New York State litigants commencing matrimonial actions another vehicle to effectuate service upon a defendant through the use of letters rogatory. The Initial Convention included the following pertaining to the purpose, terms and scope of the convention:

"The Governments of the Members States of the Organization of American States, desirous of concluding a convention on letters rogatory, have agreed as follows:

I. USE OF TERMS

Article 1

For the purposes of this Convention the terms "exhortos" and "cartas rogatorias" are synonymous in the Spanish text. The terms "letters rogatory," ' "commissions rogatoires," and "cartas rogatórias" used in the English, French and Portuguese texts, respectively, cover both "exhortos" and "cartas rogatorias."

II. SCOPE OF THE CONVENTION

Article 2

This Convention shall apply to letters rogatory, issued in conjunction with proceedings in civil and commercial matters held before the appropriate judicial or other adjudicatory authority of one of the States Parties to this Convention, that have as their purpose: a. The performance of procedural acts of a merely formal nature, such as service of process, summonses or subpoenas abroad; b. The taking of evidence and the obtaining of information abroad, unless a reservation is made in this respect.

Article 3

This Convention shall not apply to letters rogatory relating to procedural acts other than those specified in the preceding article; and in particular it shall not 1 apply to acts involving measures of compulsion."

The Additional Protocol set forth the scope of the protocol, central authority and the manner which preparation of letters rogatory would occur:

"I. SCOPE OF PROTOCOL

Article 1

This Protocol shall apply only to those procedural acts set forth in Article 2 (a) of the Inter-American Convention on Letters Rogatory, hereinafter referred to as "the Convention." For the purposes of this Protocol, such acts shall be understood to mean procedural acts (pleadings, motions, orders, and subpoenas) that are served and requests for information that are made by a judicial or administrative authority of a State Party to a judicial or administrative authority of another State Party and are transmitted by a letter rogatory from the Central Authority of the State of origin to the Central Authority of the State of destination.

II. CENTRAL AUTHORITY

Article 2

Each State Party shall designate a central authority that shall perform the functions assigned to it in the Convention and in this Protocol. At the time of deposit of their instruments of ratification or accession to this Protocol, the States Parties shall communicate the designations to the General Secretariat of the Organization of American States, which shall distribute to the States Parties to the Convention a list containing the designations received. The Central Authority designated by a State Party in accordance with Article 4 of the Convention may be changed at any time. The State Party shall inform the above-mentioned Secretariat of such change as promptly as possible.

III. PREPARATION OF LETTERS ROGATORY

Article 3

Letters rogatory shall be prepared on forms that are printed in the four official languages of the Organization of American States or in the languages of the State of origin and of the State of destination and conform to Form A contained in the Annex to this Protocol. Letters rogatory shall be accompanied by the following:

a. Copy of the complaint or pleading that initiated the action in which the letter rogatory was issued, as well as a translation thereof into the language of the State of destination;

b. Untranslated copy of the documents attached to the complaint or pleading;

c. Untranslated copy of any rulings ordering issuance of the letter rogatory;

d. Form conforming to Form B annexed to this Protocol and containing essential information for the person to be served or the authority to receive the documents; and

e. Certificate conforming to Form C annexed to this Protocol on which the Central Authority of the State of destination shall attest to execution or nonexecution of the letter rogatory.

The copies shall be regarded as authenticated for the purposes of Article 8(a) of the Convention if they bear the seal of the judicial or administrative authority that issued the letter rogatory.

A copy of the letter rogatory together with Form B and the copies referred to in items a, b, and c of this Article shall be delivered to the person notified or to the authority to which the request is addressed. One of the copies of the letter rogatory and the documents attached to it shall remain in the possession of the State of destination; the untranslated original, the certificate of execution and the documents attached to them shall be returned to the Central Authority of the State of origin through appropriate channels.

If a State Party has more than one official language, it shall, at the time of signature, ratification or accession to this Protocol, declare which language or languages shall be considered official for the purposes of the Convention and of this Protocol. If a State Party comprises territorial units that have different official languages, it shall, at the time of signature, ratification or accession to this Protocol, declare which language or languages in each territorial unit shall be considered official for the purposes of the Convention and of this Protocol The General Secretariat of the Organization of American States shall distribute to the States Parties to this Protocol the information contained in such declarations."

The Additional Protocol provides as attached documents the three forms referenced within the text of the protocol (hereinafter collectively "Protocol Forms"), being the following:

"FORM A LETTER ROGATORY

12

Requesting Judicial orCase:

Administrative AuthorityDocket No.

Name

Address

34

Central Authority of the State of OriginCentral Authority of the State of Destination

NameName

AddressAddress

56

Requesting PartyCounsel to the Requesting Party

NameName

AddressAddress

Person Designated to act in Connection With the Letter Rogatory

Name is this person responsible for costs and expenses?

Address Yes__/No__

*If not, check in the amount of _____is attached

*Or proof of payment is attached

The Central Authority signing this letter rogatory has the honor to transmit to you in triplicate the documents listed below and, in conformity with the Protocol to the Inter-American Convention on Letters Rogatory:

* A. Requests their prompt service on:

The undersigned authority requests that service be carried out in the following manner:

* (1) In accordance with the special procedure or additional formalities that are described below, as provided for in the second paragraph of Article 10 of the above-mentioned Convention; or

* (2) By service personally on the identified addressee or, in the case of a legal entity, on its authorized agent; or

* (3) If the person or the authorized agent of the entity to be served is not found, service shall be made in accordance with the law of the State of destination.

* B. Requests the delivery of the documents listed below to the following judicial or administrative authority:

Authority:

* C. Requests the Central Authority of the State of destination to return to the Central Authority of the State of origin one copy of the documents listed below and attached to this letter rogatory, and an executed Certificate on the attached Form C.

Done at _____________ this _________ date of _____________, 19____.

____________________________________________________________

Signature and stamp of the judicial or administrative authority of the State of origin

____________________________________________________________

Signature and stamp of the Central Authority of the State of origin

Title or other identification of each document to be delivered:

(Attach additional pages, if necessary.)

FORM B

ESSENTIAL INFORMATION FOR THE ADDRESSEE

To (Name and address of the person being served)

You are hereby informed that (Brief statement of nature of service)

A copy of the letter rogatory that gives rise to the service or delivery of these documents is attached to this document. This copy also contains essential information for you. Also attached are copies of the complaint or pleading initiating the action in which the letter rogatory was issued, of the documents attached to the complaint or pleading, and of any rulings that ordered the issuance of the letter rogatory.

ADDITIONAL INFORMATION

I*

FOR SERVICE

A. The document being served on you (original or copy) concerns the following:

B. The remedies sought or the amount in dispute is as follows:

C. By this service, you are requested:

D. *In case of service on you as a defendant you can answer the complaint before the judicial or administrative authority specified in Form A, Box 1 (State place, date and hour):

* You are being summoned to appear as:

* Delete if inapplicable.

* If some other action is being requested of the person served, please describe:

E. If you fail to comply, the consequences might be:

F. You are hereby informed that a defense counsel appointed by the Court or the following legal aid societies are available to you at the place where the proceeding is pending:

Name:

Address:

The documents listed in Part III are being furnished to you so that you may better understand and defend your interests.

II*

FOR INFORMATION FROM JUDICIAL OR ADMINISTRATIVE AUTHORITY

To:

(Name and address of the judicial or administrative authority)

You are respectfully requested to furnish the undersigned judicial or administrative authority with the following information:

The documents listed in Part III are being furnished to you to facilitate your reply.

III

LIST OF ATTACHED DOCUMENTS

(Attach additional pages if necessary.)

Done at __________this_______, day of _______, 19_____.

____________________________________________________________

Signature and stamp of the judicial or administrative authority of the State of origin

____________________________________________________________

Signature and stamp of the Central Authority of the State of origin

FORM C

CERTIFICATE OF EXECUTION

To:

(Name and address of judicial or administrative authority that issued the letter rogatory)

In conformity with the Additional Protocol to the Inter-American Convention on Letters Rogatory, signed at Montevideo on May 8, 1979, and in accordance with the attached original letter rogatory, the undersigned Central Authority has the honor to certify the following:

* A. That one copy of the documents attached to this Certificate has been served or delivered as follows:

Date:

At (address)

By one of the following methods authorized by the Convention.

* (1) In accordance with the special procedure or additional formalities that are described below, as provided for in the second paragraph of Article 10 of the above-mentioned Convention, or

* (2) By service personally on the identified addressee or, in the case of a legal entity, on its authorized agent, or

* (3) If the person or the authorized agent of the entity to be served was not found, in accordance with the law of the State of destination: (Specify method used)

* B. That the documents referred to in the letter rogatory have been delivered Identity of person Relationship to the addressee (Family, business or other)

* C. That the documents attached to the Certificate have not been served or delivered for the following reason(s):

* D. In conformity with the Protocol, the party requesting execution of the letter rogatory is requested to pay the outstanding balance of costs in the amount indicated in the attached statement.

Done at __________this_______, day of _______, 19_____.

__________________________________________________________

Signature and stamp of Central Authority of the State of destination

Where appropriate, attach originals or copies of any additional documents proving service or delivery, and identify them."

The Inter-American Convention was ratified by the United States of America in 1986 with the following reservation made at the time of ratification:

"1. Pursuant to Article 2(b) of the Inter-American Convention on Letters Rogatory, letters rogatory that have as their purpose the taking of evidence shall be excluded from the rights, obligations and operation of this Convention between the United States and another State Party.

2. In ratifying the Inter-American Convention on Letters Rogatory, the United States accepts entry into force and undertakes treaty relations only with respect to States which have ratified or acceded to the Additional Protocol as well as the Inter-American Convention, and not with respect to States which have ratified or acceded to the Inter-American Convention alone" (see Transnational Litigation § 38.2).

Colombia ratified the entire Inter-American Convention in 1995, inclusive of the Additional Protocol.

Similar to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter "Hague Convention"), the Inter-American Convention was entered into by signatory countries to assist in the service of pleadings to those located within the member countries. However, both conventions have been interpreted differently with respect to implementation within the State of New York. While it has been determined that the Hague Convention was intended to supplant New York State Law as the sole manner of service of those outside the State of New York (see Alfred E. Mann Living Trust v. ETIRC Aviation S.a.r.l., 78 AD3d 137 [1st Dept 2010]; see also, U.S.C.A. Const. Art. VI cl. 2; Fernandez v. Univan Leasing, 15 AD3d 343 [2d Dept 2005] [internal quotations omitted]), it has been determined that the Inter-American Convention was only intended to offer an alternative to that set forth in New York State Law (see Morgenthau v. Avion Resources Ltd., 11 NY3d 383 [2008]).

In Morgenthau, the Court of Appeals rejected the position that service of a party in the country of Brazil made pursuant to CPLR § 313 was improper, as service must be performed in that country by letters rogatory due to international treaty offering the following reasoning:

"We begin with the words of the statute:

'A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory possession or country in which service is made or by any duly qualified attorney, solicitor, *389 barrister, or equivalent in such jurisdiction' (CPLR 313).9

**933 ***890 'As a general proposition, we need not look further than the unambiguous language of the statute to discern its meaning' (Jones v. Bill, 10 NY3d 550, 554, 860 N.Y.S.2d 769, 890 N.E.2d 884 [2008] ). In doing so, we look not only at what the statute requires, but also at what it does not require. Absent in the plain text is any requirement to fulfill a foreign locale's service of process requirements in order to effectuate service in a New York action upon a defendant in another country.2 As we stated in Dobkin v. Chapman, 21 NY2d 490, 501, 289 N.Y.S.2d 161, 236 N.E.2d 451 [1968], the words of CPLR 313 are "clear and unqualified; service may be made without the State ... 'in the same manner as service is made within the state.' ' This straightforward rule advances the statute's purpose:

'[T]he joint report of the Senate and Assembly committees ... noted, in so many words, that service outside of New York ... could be effected 'in any manner that is permitted within the state' and that '[t]he permissive methods of service without the state have been increased in order to enhance the possibility of acquiring in personam jurisdiction over non-residents subject to our court's jurisdiction ...' (Fifth Preliminary Report, NY Legis. Doc., 1961, No. 15, pp. 271—272)' (id. at 501).

CPLR 313, therefore, has both the intention and effect of 'remov[ing] state lines, and the plaintiff is to use the service methodologies of CPLR 308, 309, 310, 311, and 312—a, etc. wherever the defendant (or person authorized to accept service on defendant's behalf) may be found' (Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 313, quoting Siegel, NY Prac. § 100, at 168 [3d ed. 1999] [internal quotation marks omitted] )" (see Morgenthau, Id.).

Later in the decision, the Court of Appeals touched upon the distinction between The Hague Convention and The Inter-American Convention:

"Where there exists a treaty requiring a specific form of service of process such as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention), that treaty, of course, is the supreme law of the land and its service requirements are mandatory (see U.S. Const., art VI, cl. 2; Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S.Ct. 2104, 100 L.Ed.2d 722 [1988] ). But the Hague Service Convention is not implicated in connection with service on the Brazilian nationals because Brazil is not a signatory to that convention.5 Both the United States and Brazil are signatories to the Inter—American Convention on Letters Rogatory (reprinted following *391 28 U.S.C.A. § 1781). Article 2 of that treaty does not mandate, however, that letters rogatory be the exclusive means of service on a party in Brazil. As stated in Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 640—642 [5th Cir.1994]:

'[N]othing in the language of the Convention expressly reflects an intention to supplant all alternative methods of service. Rather, the Convention appears solely to govern the delivery of letters rogatory among the signatory States ...'

'[T]he text of the Convention strongly indicates, not that the Convention preempts other conceivable methods of service, but that it merely provides a mechanism for transmitting and delivering letters rogatory when and if parties elect to use that mechanism.'

Consequently, the Letters Rogatory Convention allows for service of process pursuant to a state statute (see Laino v. Cuprum S.A. de C.V., 235 AD2d 25, 29, 663 N.Y.S.2d 275 [2d Dept.1997] ).10 Here, that statute is CPLR 313" (see Morgenthau, Id.).

3. Basis to Obtain Extended Time To Serve.

Pursuant to CPLR § 306-b, service of the pleadings shall be effectuated within 120 days of commencement, and the Court may extend the time to serve either by "good cause shown" or "in the interests of justice" which may be made by motion or cross motion (see Nelson v. New York State Department of Motor Vehicles, 188 AD3d 692 [2d Dept 2020]); and if service is not effectuated in the time period provided by this statute or following any extension granted by the reviewing court, upon motion by Defendant an order granting dismissal may be entered (see Daniels v. Kin Chicken & Stuff, Inc., 35 AD3d 345 [2d Dept 2006]). "Commencement" as utilized in CPLR § 306-b is defined in DRL § 211 which provides that, "A matrimonial action shall be commenced by the filing of a summons with the notice designated in section two hundred thirty-two of this chapter, or a summons and verified complaint as provided in section three hundred four of the civil practice law and rules" (see also J.A.P. v. A.J.P., 55 Misc. 608 [Sup Ct Monroe Cty 2017]).

A decision entered by the Appellate Division, Second Department, just days ago sets forth the manner within which a movant may seek an extension of time to serve a pleading by application made pursuant to CPLR § 306-b:

"" 'Pursuant to CPLR 306—b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service of the summons and complaint for good cause shown or in the interest of justice' " (Countrywide Home Loans, Inc. v. Lyons, 219 AD3d 1404, 1405—1406, 197 N.Y.S.3d 247, quoting Wells Fargo Bank, N.A. v. Ciafone, 188 AD3d 957, 958, 136 N.Y.S.3d 121). " 'Good cause and interest of justice are two separate and independent statutory standards' " (id. at 1406, 197 N.Y.S.3d 247, quoting Wells Fargo Bank, N.A. v. Ciafone, 188 AD3d at 958, 136 N.Y.S.3d 121). " 'Good cause requires a showing of reasonable diligence in attempting to effect service' " (id., quoting Emigrant Bank v. Estate of Robinson, 144 AD3d 1084, 1085, 44 N.Y.S.3d 48). "Under the interest of justice standard, 'the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to [the] defendant' " (id., quoting Wells Fargo Bank, N.A. v. Boakye—Yiadom, 213 AD3d 976, 978, 185 N.Y.S.3d 191)" (Morgan v. McLeod, 2026 WL 2590186 [2d Dept 2026]).

Turning first to if an exercise of discretion is warranted in this instance, based upon the submissions made by Plaintiff, this Court determines that it cannot find good cause to grant the requested extension as Plaintiff failed to make any effort at service (see A.K. v. T.K., 150 AD3d 1091 [2d Dept 2017]). A plain reading of the Plaintiff's affidavit confirms no assertion that any attempts to serve Defendant with the pleadings were made. Instead Plaintiff's affidavit includes claims that Defendant's residence in Colombia makes "standard local U.S. service impossible" and that such an extension must be granted as "it is completely impossible to complete the international treaty process through the Colombian Central Authority within the standard timeframe." However, despite the existence of ample legal authority for Plaintiff to have served Defendant pursuant to CPLR § 313, or the Inter-American Convention, Plaintiff failed to provide allegations or proofs as to any attempts to serve Defendant under either option. Moreover, while Plaintiff asserts that the process set forth by the Inter-American Convention is difficult, requiring an extension of time, he has failed to offer any explanation as to what efforts, if any, he made to complete that process within the allotted 120-days from commencement of this proceeding.

Next, this Court determines that the requested extension cannot be granted in the interest of justice following a review of the following factors:

Lack of Diligence

In addition to Plaintiff's failure to assert any attempts to serve Defendant pursuant to either CPLR § 313 or the Inter-American Convention as noted above, Plaintiff incorrectly asserts that the 120-day period for him to complete service of the pleadings upon Defendant ended on July 4, 2026 due to his filing of the amended summons with notice and complaint on March 6, 2026. The correct date of commencement of this action was November 26, 2025, being the date of filing of the initial summons with notice,⁷ which is 239 days prior to Plaintiff's filing of the instant application which is 119 days beyond the 120-day deadline to have effectuated service of the summons with notice and any amendment thereof. Accordingly, the deadline for Plaintiff to effectuate service was March 26, 2026, and not July 4, 2026. Again, despite the passage of approximately double the time afforded to effectuate service on Defendant set forth by statute, Plaintiff has failed to assert any semblance of diligence to complete service.

Failure to Annex Documents

As noted above, despite asserting, both in his order to show cause and supporting affidavit, that he had annexed the proposed letter rogatory for entry by this Court to facilitate service pursuant to the Inter-American Convention, no such document was annexed. However, even if such document was attached, conforming with Form A Letter Rogatory of the Inter-American Convention, Plaintiff also failed to submit for consideration the two additional documents required by the convention being Form B — Essential Information For the Addressee and Form C — Certificate of Execution. As these documents are required to effectuate service of the pleadings on Defendant, if Plaintiff were to proceed with service pursuant to the Inter-American Convention as stated in his application, all three documents should have been presented to this Court to review together for a determination to be made following such examination.

Defective Summons and Amended Summons

Both the summons and amended summons filed by Plaintiff are defective as they fail to include the basis for venue. CPLR § 305(a) directs, "A summons shall specify the basis of the venue designated and if based upon the residence of the plaintiff it shall specify the plaintiff's address " While venue may usually be set forth by Plaintiff pursuant to CPLR §§ 501-509, a separate rule exists for the establishment of venue in matrimonial actions in CPLR § 515, which directs:

"(a) This rule applies to all actions wherein all or part of the relief granted is divorce, all actions brought in supreme court for custody or visitation, all applications to modify a supreme court order of custody or visitation, all actions wherein all or part of the relief granted is the dissolution, annulment or declaration of the nullity of a marriage, all proceedings to obtain a distribution of marital property following a foreign judgment of divorce, and all post-judgment proceedings following a judgment of divorce.

(b) Notwithstanding anything to the contrary in this article, the place of trial in an action subject to subdivision (a) of this rule shall be in a county in which either party resides or, if there are minor children of the marriage, the place of trial may also be in the county where one of such children resides; except that where any of the addresses of these residences is not a matter of public record, or where any of these addresses is subject to an existing confidentiality order pursuant to section 254 of the domestic relations law or section 154-b of the family court act, the place of trial designated by the plaintiff in any action specified in subdivision (a) of this rule may be as specified in section 509 of this article.

(c) In any action specified in subdivision (a) of this rule, the court may, for good cause shown, allow the trial to proceed before it, notwithstanding that venue would not lie pursuant to subdivision (b) of this rule. Good cause applications shall be made by motion or order to show cause [emphasis added]."

Examination of the legislative history pertaining to the adoption of CPLR § 515 reflects that one of the basis for the adoption of this rule was to assist the litigants as noted in the Sponsor's Memorandum (hereinafter "Sponsor's Memorandum"):

"This bill will significantly further access to justice by distributing judicial resources more fairly, speed the processing of divorce cases in counties overburdened by non-resident filings, and assure better outcomes for litigants.

* * *

Designating venue in a divorce action in a county distant from the residence of the parties and children will require defendants to travel long distances where judges require appearances to resolve conflicts in the papers or testimony on a range of issues, or to meet with professionals in relation to the litigation. Moreover, it burdens the courts of that county. It also requires that judges appoint and deal with counsel and mental health and other professionals in distant jurisdictions with whose work and expertise they are unfamiliar. When venue is designated in a distant county, defendants are also more likely to default, in the process giving up valuable rights and increasing the likelihood of post judgment applications.

* * *

This bill would avoid problems of venue designations in distant counties by requiring that venue be related to the parties' residence notwithstanding CPLR 509. It requires that venue in a divorce action be related to the residence of the parties or child(ren) of the marriage with exception only for instances where the address of a party is not a matter of public record or is subject to a confidentiality order, when it may be specified pursuant to CPLR 509. It also gives the court authority for good cause shown to allow the trial to proceed before it even if venue is not proper, thus avoiding time consuming venue transfers to other counties fraught with delays when appropriate. Moreover, because proposed CPLR rule 515 is expressly limited to matrimonial actions, it will have no impact on non-matrimonial actions.

This bill will ensure that divorces will be processed more quickly statewide as it should result in the volume of divorces being more evenly distributed among counties. This measure will also ensure better outcomes in divorce cases by ensuring that defendants are less likely to default, that parties and their children do not have to travel long distances for in-person hearings, and that judges can appoint and deal with professional counsel and forensic evaluators in custody matters with whose work and expertise they are familiar. As a result, outcomes in divorce cases will be fairer since judges will be better able to assess allegations and fairness of the relief sought because they will have more readily available important information about children and families that would not be available if the venue were not related to residence."⁸

Accordingly, pursuant to CPLR § 515, unless good cause is determined to exist by the reviewing trial court to permit otherwise, where a matrimonial action is commenced in this State the basis for venue will be the residence of either party or of the minor children of the marriage, requiring said address to be noted on Plaintiff's summons as the basis for venue. The only exception would be if a confidentiality order existed as noted in CPLR § 2103-a:

"(a) Notwithstanding any other provision of law, in any civil proceeding, whether or not an order of protection or temporary order of protection is sought or has been sought in the past, the court may, upon its own motion or upon the motion of any party, authorize any party to keep his or her residential and business addresses and telephone numbers confidential from any party in any pleadings or other papers submitted to the court, where the court makes specific findings on the record supporting a conclusion that disclosure of such addresses or telephone numbers would pose an unreasonable risk to the health or safety of a party. Pending such a finding, any such addresses or telephone numbers of the party seeking confidentiality shall be safeguarded and sealed in order to prevent its inadvertent or unauthorized use or disclosure.

(b) Notwithstanding any other provision of law, if a party has resided or resides in a residential program for victims of domestic violence as defined in section four hundred fifty-nine-a of the social services law, the present address of such party and the address of the residential program for victims of domestic violence shall not be revealed by the court or any court personnel who may have access to such information.

(c) Upon such authorization, the court shall designate the clerk of the court or such other disinterested person as it deems appropriate, with consent of such disinterested person, as the agent for service of process for the party whose residential and business addresses or telephone numbers are to remain confidential and shall notify the parties of such designation and the address of the agent in writing. The clerk or disinterested person designated by the court shall, when served with process on behalf of the party whose information is to remain confidential, promptly notify such party whose information is to remain confidential and forward such process to him or her in a manner calculated to be timely received.

(d) In any case in which such confidentiality authorization is made, the party whose information is to remain confidential shall inform the clerk of the court or disinterested person designated by the court of any change in address for purposes of receipt of service of process or any papers."

Here, both the initial summons and amended summons omit any stated basis for venue, and to the extent that this Court were to overlook that omission and take into consideration what information is set forth on the face of either document for purposes of evaluating proper venue pursuant to CPLR § 515, no such information is provided. On each document, Defendant's address is listed as being in the country of Colombia and the following is listed for Plaintiff's address:

"Plaintiff's Address for Service (Kept Private):

c/o Westchester County Clerk

111 Dr. Martin Luther King Jr. Blvd

White Plains, New York 10601"

This is wholly improper, as no basis for venue is provided and to the extent that basis for venue is asserted as Plaintiff's address he has omitted same without the exception of an address confidentiality order being in place. Accordingly, upon review of either summons, this Court is unable to determine if Plaintiff's address is within Westchester County, New York to support venue before this Court, and to the extent Plaintiff resides outside this County, Plaintiff has failed to file an application requesting that this Court determine good cause to exist for this action to be heard in this venue.

Based upon the foregoing, this Court must determine if the omission of the basis for venue on Plaintiff's summons and amended summons constitutes a mere irregularity which may be disregarded pursuant to CPLR § 2101(f), or corrected at a later date pursuant to CPLR § 2001, or if the lack if this information prejudices Defendant. Initially, this Court must recognize the importance of a summons in litigation as it provides vital information for a defendant:

"CPLR 304 states in relevant part that '[a]n action is commenced and jurisdiction acquired by service of a summons.' The purpose of the summons is to notify the defendant *36 named therein that the plaintiff seeks a judgment against him so that he may take such steps as may seem advisable to protect his interest (Stuyvesant v. Weil, 167 NY 421, 425, 60 N.E. 738; 3 Carmody-Wait 2d, § 24:1). Such notice is an absolutely fundamental requirement of due process of law under the Fourteenth Amendment to the United States Constitution (Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314—315, 70 S.Ct. 652, 657—658, 94 L.Ed. 865; Schroeder v. City of New York, 371 U.S. 208, 209, 211—212, 83 S.Ct. 279, 280, 281—282, 9 L.Ed.2d 255). A court may, at any time, exercise its discretion to permit the amendment of a summons 'if a substantial right of a party against whom the summons issued is not prejudiced' (CPLR 305, subd. [c], emphasis added; see, also, CPLR 2001). As part of this liberal amendment policy, our courts have often permitted the correction of a misnomer or a misdescription of the legal status or title of a party, provided that the party misnamed or misdescribed was fairly apprised of the fact that he, she or it was intended to be affected by the proceedings (see 3 Carmody-Wait 2d, §§ 19:11—19:19)" (Connell v. Hayden, 83 AD2d 30 [2d Dept 1981]).

In the context of general litigation, it has been determined that, "[t]he failure to comply with CPLR § 305(a) is an irregularity, not a jurisdictional defect and does not require dismissal in the absence of prejudice" (Cestaro v. Osorio, 21 Misc 3d 1144 [A], [Sup Ct. Bronx Cnty 2008]). However, in discussing Cestaro, another trial court aptly noted that where prejudice is found to exist, a Plaintiff's non-compliance with CPLR § 305(a) will not be determined to be a mere irregularity:

" 'The purpose of the summons is to notify a defendant that plaintiff seeks a judgment against defendant so that a defendant may take such steps as may seem advisable to protect defendant's interests' (Niemiec v. Niemiec, 180 Misc 2d 207, 209—210, 688 N.Y.S.2d 432 [Sup. Ct., Richmond County 1999] ). There is limited case law addressing whether the omission of the plaintiff's address from the summons is a jurisdictional defect. In *1083 Cestaro v. Osorio, 21 Misc 3d 1144(A), 2008 WL 5206285 [Sup. Ct., Bronx County 2008], the Supreme Court held that 'the failure to articulate the grounds for venue and the failure to provide plaintiff's address ... is an irregularity and not a jurisdictional defect.' However, the court also noted 'that the failure to comply with the technical pleading requirements promulgated by CPLR § 305(a), are mere irregularities, not tantamount to a jurisdictional defect, and thus no dismissal of an action is warranted unless there is a demonstration of prejudice' (Cestaro, 21 Misc 3d at 1144(A), 2008 WL 5206285 (emphasis added), citing **390 Cruz, 269 AD2d at 108, 702 N.Y.S.2d 284). Here, there is no question that the noted omission of plaintiff's address caused prejudice to defendants.

The present action is distinguishable from the Cestaro action, which was also 'for alleged damages incurred as a result of defendant's default on a lease,' as there is no indication in Cestaro that the defendant was actually unaware of the identity of the plaintiff as is the case here (see Cestaro, 21 Misc 3d at 1144(A), 2008 WL 5206285). In Cestaro, prior to moving to dismiss, the defendant was in contact with the plaintiff with respect to the issues of service and the content of the summons, and was therefore clearly not prejudiced by the omission of the required information (see also Cellular, 209 AD2d at 64, 624 N.Y.S.2d 170 (the omission in the original pleading was corrected by the service of a 'duplicate' copy of the summons and complaint which included the omitted information in a timely manner)). However, in the present actions, there is no indication that the defendants were even aware of the identity of the plaintiff or the assignment of the leases prior to receiving the summonses.

Further, with the exception of the defendant in Bloomingdale v. Wise, there is no indication that the defendants learned of the plaintiff's address, and thus the address for proper service of an answer or dispositive motion, prior to service of the notice of motion for a default judgment. As is evidenced by the correspondence submitted by the defendant in Bloomingdale v. McGraw, the defendants 'cannot respond to the [summons] if [they] do not know where to mail the response.' As the purpose of the summons is to notify the defendants of the plaintiff's claim so the defendants may protect their interests, the omission of the plaintiff's address clearly prejudiced the defendants and hindered their ability to serve an answer or motion in these actions. The plaintiff's default motions rely on the premise that the defendants failed to answer the summonses. Accordingly, as the omission of the plaintiff's address from the summonses was a violation of *1084 CPLR 305(a), which prejudiced the defendants by hindering their ability to respond, plaintiff has failed to establish the predicate for the relief requested, defendants' default in answering. The motions for default judgment must therefore be denied" (Bloomingdale Road Judgment Recovery v. Wise, 29 Misc 3d 1078 [Sup Ct Kings Cnty 2010]).

In this instance, this Court determines that the omission of Plaintiff's address does result in prejudice to Defendant who, when presented with the amended summons with notice as requested by Plaintiff in the application before this Court, may disagree with Plaintiff's stated basis for venue and seek the entry of an order granting a change (see Brash v. Richards, 87 AD3d 556 [2d Dept 2011] [Finding that a change of venue was warranted, "When the plaintiff commenced this action, he did not specify the basis for placing venue in Kings County and, if based on his residence, he did not specify his address, as required by CPLR 305(a)"]). However, due to Plaintiff's non-compliance with CPLR § 305(a), Defendant will be unable to determine what the asserted basis for venue is or if she disagrees and would then seek to exercise her right to request a change of venue. As noted in the Sponsor's Memo pertaining to venue in matrimonial actions, there is a strong public policy within this State which resulted in the adoption of that statute to ensure that correct venue is selected for such actions, in part to prevent litigants from obtaining access to justice.

Defective Complaint

Initially, 22 NYCRR § 130-1.1a requires that all submissions made by a litigant to a court be signed:

"(a) Signature. Every pleading, written motion, and other paper, served on another party or filed or submitted to the court shall be signed by an attorney, or by a party if the party is not represented by an attorney, with the name of the attorney or party clearly printed or typed directly below the signature. Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party.

(b) Certification. By signing a paper, an attorney or party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances,

(1) the presentation of the paper or the contentions therein are not frivolous as defined in section 130-1.1(c) of this Subpart, and

(2) where the paper is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom, and (ii) the matter was not obtained in violation of Part 1200, Rule 4.5 of this Title."

Further, DRL § 211 requires that except for those asserting adultery, all matrimonial pleadings must be verified:

"A matrimonial action shall be commenced by the filing of a summons with the notice designated in section two hundred thirty-two of this chapter, or a summons and verified complaint as provided in section three hundred four of the civil practice law and rules. A final judgment shall be entered by default for want of appearance or pleading, or by consent, only upon competent oral proof or upon written proof that may be considered on a motion for summary judgment. Where a complaint or counterclaim in an action for divorce or separation charges adultery, the answer or reply thereto may be made without verifying it, except that an answer containing a counterclaim must be verified as to that counterclaim. All other pleadings in a matrimonial action shall be verified."⁹

By requiring a verification of pleadings, the litigant is encouraged to engage in honesty as to the facts alleged therein as they may be found to have engaged in perjury if they assert facts later determined to be false (see Siegel, NY Prac. § 232 [6th ed.]; see also Penal Law §§ 210.10, 210.15).

Here, Plaintiff filed the Complaint, which is undated, unsigned and unverified. While the striking of this pleading due to non-compliance with 22 NYCRR § 130-1.1a would likely be improper without affording Plaintiff the opportunity to amend same, it would be equally improper for this Court to take note of this defect and fail to address it herein when evaluating the relief sought in the instant application (see Cardo v. Board of Managers, Jefferson Village Condo 3, 29 AD2d 930 [2d Dept 2006]). For these reasons the Complaint, which Plaintiff now seeks leave of this Court for additional time to serve on Defendant, is defective.

Accordingly, based upon the foregoing, the application for the entry of an order extending Plaintiff's time to effectuate service is denied.

C. 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 for the reasons stated herein; 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: September 14, 2026

White Plains, New York

ENTER:

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

FOOTNOTES

1.   Note: While the movant's order to show cause references "the mandatory convention form/form USM-272 letter rogatory", no such document was annexed to the application or otherwise filed with this Court.

2.    See, NYSCEF Doc. No. 1.

3.    See, NYSCEF Doc. No. 2.

4.    See, NYSCEF Doc. No. 3.

5.    See, NYSCEF Doc. No. 7-9.

6.    See, NYSCEF Doc. No. 10.

7.    See, DRL § 211 ["A matrimonial action shall be commenced by the filing of a summons with the notice designated in section two hundred thirty-two of this chapter, or a summons and verified complaint as provided in section three hundred four of the civil practice law and rules."]

8.    See, NY Sponsor Memo., 2024 A.B. 10353; see also, S.B. v. D.H., 85 Misc 3d 1229(A) [Sup Ct Westchester Cnty 2025]).

9.    See also, CPLR §§ 3020, 3021, 3022 and 3023.

James L. Hyer, J.