Plitnick v. Fernandez

OPINION OF THE COURT Dan Lamont, J. Attorney for the plaintiffs in this mortgage foreclosure action presents an affidavit of regularity and a proposed order of reference. An order made by this court on February 25, 1985 permit [184] ted service by publication in two newspapers, to wit: The Times Journal, published at Cobleskill, New York; and The News, published in the City of New York, once a week for four consecutive weeks. CPLR 316 (c) provides that the first publication of the summons must be made within 30 days after the order for service by publication was granted. This is a strict jurisdictional requirement, and even a short delay will void the service (Caton v Caton, 72 Misc 2d 544 [Sup Ct, Monroe County 1972]; Siegel, NY Prac § 107). Here, the publication in The Times Journal commenced March 13, 1985, but the publication in The News did not occur until February 4, 11, 18 and 25, 1986. Separate publications nearly one year apart do not constitute compliance with the statute, nor with the order permitting service by publication. CPLR 316 (c) must be read as requiring the first publication of the summons in each newspaper within 30 days after the order for publication is granted. Such a gross deviation from the mechanics of the statute cannot be disregarded as a mere irregularity under CPLR 2001. The late publication could prejudice the defendant if he somehow became aware of the first publication and believed his time to answer had expired, whereas publication in the second newspaper had not yet even begun. Accordingly, this court holds and determines that the attempted service by publication is null and void, and jurisdictionally defective. The application for an order of reference is hereby denied.