American Package Company, Inc., Appellant, v. XYZ ABC LLC (2026)

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Landlord commenced this holdover proceeding on November 16, 2023 by filing the notice of petition and petition (see CCA 400 [1]), following the termination of tenant's month-to-month tenancy. On February 1, 2024, the Civil Court scheduled the return date of the proceeding for May 29, 2024. On July 2, 2024, Alexandru G. Postelnicu, tenant, and Sophia Hanover, undertenant, moved, insofar as is relevant to this appeal, to dismiss the petition for lack of personal jurisdiction based on landlord's failure to serve the notice of petition and petition. On October 1, 2024, landlord cross-moved for an extension of time to serve the notice of petition and petition on tenant and undertenants pursuant to CPLR 3012 (d). In its cross-motion papers, landlord's counsel admitted that the notice of petition and petition were never served, but argued that respondents would not be prejudiced if landlord were granted additional time to serve the notice of petition and petition. Landlord's counsel also alleged, for the first time in a reply affirmation, that he neglected to serve the notice of petition and petition upon tenant and undertenants due to law office failure, and that he "promptly" moved for additional time to serve upon discovering this error.

Insofar as is relevant to this appeal, by order entered January 31, 2025, the Civil Court (Sulay K. Grant, J.) granted the branch of the motion by tenant and undertenant seeking to dismiss the petition and denied landlord's cross-motion. On appeal, landlord argues that the Civil Court improvidently exercised its discretion in dismissing the petition and denying its cross-motion, as the Civil Court had the discretion to grant landlord additional time to serve the notice of petition and petition pursuant to CPLR 3012 (d) and CPLR 2001.

Contrary to landlord's contention, CPLR 3012 (d) contemplates an extension of time to serve a pleading, particularly where a summons is served without a complaint pursuant to CPLR 3012 (b); it does not permit a court to grant additional time to serve process in an action or special proceeding where no personal jurisdiction has been obtained over the defendants or respondents (see generally CPLR 3012 [b]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d 705, 706 [2006]; Porter v Beaulieu, 282 AD2d 980, 981 [2001]). Similarly, the failure to serve a defendant or respondent "is not a mere 'technical infirmity' but rather a jurisdictional defect that may not be cured by CPLR 2001" (Matter of Nelson v New York State Dept. of Motor Vehs., 188 AD3d 692, 693 [2020]; see Ruffin v Lion Corp., 15 NY3d 578, 581-583 [2010]; Siedlecki v Doscher, 33 Misc 3d 18, 20 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). To the extent that landlord's cross-motion may have, in effect, sought an extension of time to serve respondents pursuant to CCA 411, landlord failed to demonstrate that an extension of time was warranted under either the "good cause" or "interest of justice" standards of that section (see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-106 [2001]; Bumpus v New York City Tr. Auth., 66 AD3d 26, 31-32 [2009]). We note that landlord made no attempt to serve the notice of petition and petition, and did not move for an extension of time to serve the notice of petition and petition until well over six months following the expiration of the 120-day period for service prescribed in CCA 411, and three months after tenant and undertenant moved to dismiss the petition. We further note that we do not consider the law office failure argument, which was raised for the first time in landlord's counsel's reply affirmation (see generally Federal Natl. Mtge. Assn. v NB 1168 Realty, LLC, 234 AD3d 938, 939 [2025]; Rhodes v City of New York, 88 AD3d 614, 615 [2011]). Consequently, the Civil Court did not improvidently exercise its discretion in dismissing the petition and denying landlord's cross-motion for additional time to serve the notice of petition and petition (see Crystal v American Tr. Ins. Co., 230 AD3d 1229, 1230 [2024]; Marzan v Petit-Frere, 220 AD3d 852, 852-853 [2023]; Riccio v Ghulam, 29 AD3d 558, 560 [2006]).

Accordingly, the order, insofar as appealed from, is affirmed.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 12, 2026