Justice Felix Frankfurter was well-known for having written, "Litigation is the pursuit of practical means, not a game of chess." Indianapolis v. Chase Nat'l Bank, 314 U.S. 63, 69 (1941). New York's Civil Practice Law and Rules (CPLR) strongly embodies this sentiment, preferring adjudication on the merits whenever feasible. Indeed, it was designed this way. Consider, for example, Article 20 of the CPLR, which is devoted entirely to "Mistakes, Defects, Irregularities, and Extensions of Time." Contained therein are CPLR 2001 and 2004, which permit courts to disregard a gamut of defects as "infirmities" or "irregularities" so long as no party is substantially prejudiced and the defect is not jurisdictional. The former provides that "at any stage of an action, including the filing of a summons … and complaint … the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process … to be corrected upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect, or irregularity shall be disregarded … ." The latter, that "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." Together, both "put[] procedure in perspective by reminding bench and bar that procedure is a means, not an end." David D. Siegel and Patrick M. Connors, New York Practice, §5 (6th ed. 2018).

CPLR 2001 Pre-'Ruffin'

In 2007, the Legislature amended CPLR 2001 to include the language italicized above. The amendment came in response to the Court of Appeals' decisions in cases such as Harris v. Niagara Falls Bd. of Educ., 6 N.Y.3d 155 (2006), and Matter of Frye v. Village of Tarrytown, 89 N.Y.2d 714 (1997), both of which concerned seemingly innocuous defects in commencement held to be jurisdictional. Harris affirmed dismissal of the action as untimely where the summons and complaint were filed bearing the index number of the special proceeding brought to permit late filing of the underlying notice of claim, rather than a newly purchased one as required under the commencement-by-filing system. See CPLR 304, 306-a. Frye held, in the context of an Article 78 proceeding, that the commencement-by-filing process was not complied with where the petitioner, pro se, filed only an unexecuted order to show cause with the court, rather than the executed order to show cause or notice of petition. While one is hard-pressed to point to any demonstrable prejudice that accrued to the respondents in Harris or Frye, the Court of Appeals held that this was beside the point. Failure to strictly comply with the requirements of the commencement-by-filing system was deemed a non-remediable, jurisdictional defect: "[T]he extremely serious result of noncompliance, so long as an objection is timely raised by an appearing party, is outright dismissal of the proceeding." Harris, 6 N.Y.3d at 158.

'Ruffin' Enters the Scene

While, on its face, the Legislature's 2007 amendment made clear that CPLR 2001 was to apply to defects in commencement and filing, the same could not be said for defects in service of process. This was the subject of the Court of Appeals' 2010 decision in Ruffin v. Lion Corp., 15 N.Y.3d 578 (2010). There, the plaintiff brought suit to recover for injuries sustained while a passenger on the defendant's tour bus within the state. The defendant was headquartered in Pennsylvania, which permitted service to occur pursuant to CPLR 313. CPLR 313 permits extraterritorial service upon a defendant subject to the state's jurisdiction so long as the person effecting service is (1) a resident of New York and otherwise permitted to effect service within the state, (2) authorized to effect service by the laws of the foreign jurisdiction, or (3) a licensed attorney, solicitor, or barrister within the foreign jurisdiction. The plaintiff's process server, however, fell into none of these categories: He was not a New York resident, a sheriff authorized to serve process as required by Pennsylvania law, nor an attorney, solicitor, or barrister within the jurisdiction. After being served, albeit in contravention of CPLR 313, the defendant failed to timely appear, which led to a default judgment being taken against it and, after inquest, a judgment for damages. Two years later, the defendant moved for vacatur of the judgment and, thereupon, dismissal of the action, contending that personal jurisdiction had not been obtained over it, given the plaintiff's failure to comply with CPLR 313. The Supreme Court, Kings County, denied the defendant's motion, holding that, as presented, the plaintiff's failure to comply with CPLR 313 was a "mere irregularity" that could be disregarded, not a jurisdictional defect requiring dismissal. See Ruffin v. Lion Corp., 38 Misc.3d 1205(a) (Sup. Ct., Kings County, 2008), aff'd 15 N.Y.3d 578, supra. On appeal, the Appellate Division, Second Department, reversed, highlighting a departmental split.

In the Appellate Division, the plaintiff did not dispute that CPLR 313 was violated. Rather, she argued that the Supreme Court abused its discretion in failing to disregard the defect as a "mere irregularity that could be overlooked [via CPLR 2001], and not a jurisdictional defect." Ruffin v. Lion Corp., 63 A.D.3d 814, 815 (2d Dept. 2009), rev'd 15 N.Y.3d 578 (2010), supra. In support, she cited to the First Department's American Home Assur. Co. v. Morris Indus. Bldrs., 176 A.D.2d 541 (1st Dept. 1991), upon which the Supreme Court had also heavily relied. There, the court held that the failure of the plaintiff's process server to satisfy CPLR 313 at the time of service constituted "a mere irregularity, since it did not substantially prejudice [the] defendant's rights, and therefore it shall be disregarded." Id. at 544 (emphasis added and internal quotation marks omitted). The Second Department, splitting from the First Department, declined to follow American Home Assur. Co., however, emphasizing that "this Court has consistently held that service by a party is not a mere irregularity that can be overlooked," as well as that "statutes defining methodology of service may not be overlooked or ignored." Ruffin, 63 A.D.3d at 815-16. As CPLR 313 defines a methodology of service, the Second Department held that the plaintiff could not avail herself of CPLR 2001 to remedy her process server's error. Rather, failure to comply with CPLR 313 was deemed a non-remediable, jurisdictional defect. And the fact that no demonstrable prejudice had accrued to the defendant was irrelevant. The Appellate Division reversed the Supreme Court, granting vacatur in favor of the defendant and dismissing the complaint.

Upon appeal to the Court of Appeals, the court reversed, holding that the Appellate Division failed to consider CPLR 2001 through the lens of the Legislature's 2007 amendment. The court found: "It is clear from the Sponsor's Memorandum that the purpose of the 2007 amendment to CPLR 2001 was to allow courts to correct or disregard technical defects, occurring at the commencement of an action, that do not prejudice the opposing party." Ruffin, 15 N.Y.3d at 582 (emphasis added). This was such a defect, held the court, citing directly to Harris and Matter of Frye, supra: "Although the payment of a filing fee and the filing of initiatory papers are the acts that commence an action or special proceeding and service comes thereafter … we perceive no reason why the Legislature would wish to foreclose dismissal of actions for technical, nonprejudicial defects in filing but not service." Id. at 582. Additionally, the court noted that CPLR 2001 applies at any stage of an action by its own terms. As such, the court held that the Appellate Division erred in holding that "a CPLR statute defining [a] method of service can in no circumstances be disregarded." Id. (emphasis added).

But the court went further. Aligning itself with the First Department's approach in American Home Assur. Co., supra, it held that CPLR 2001 may be utilized to cure what it dubbed "technical infirmit[ies]" in service. Whether a defect in service is jurisdictional or a mere technical infirmity depends upon whether it "affects the likelihood that the summons and complaint will reach [the] defendant and inform him that he is being sued." Id. at 583. For "courts must be guided by the principle of notice to the defendant—notice that must be 'reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Id. at 582 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Simply put, if the defect in service decreases the likelihood that the defendant will receive the pleadings, it is jurisdictional and cannot be disregarded via CPLR 2001 irrespective of actual receipt or the absence of prejudice to the defendant. Likewise, if the defect does not decrease the likelihood that the defendant will receive the pleadings, it may be disregarded via CPLR 2001 as a mere technical infirmity absent a showing of substantial prejudice to the defendant. Illustrating, the court noted that simply mailing or emailing the pleadings to a defendant and delivery upon the wrong person "present more than a technical infirmity … inasmuch as these methods in general introduce greater possibility of failed delivery." Id. at 583. On the other hand, though, the plaintiff's failure to comply with CPLR 313 constituted a technical infirmity because "delivery of a summons and complaint by a process server who is unauthorized to serve simply because of his place of residence will not affect the likelihood that the summons and complaint will reach defendant and inform him he is being sued." Id. The court reversed.

CPLR 2001 Post-'Ruffin'

While the Court of Appeals has not directly revisited Ruffin, the Appellate Division has rendered at least five defects jurisdictional in direct reliance upon it. In Estate of Perlman v. Kelley, 175 A.D.3d 1249 (2d Dept. 2019), for example, the Second Department recently held that failure to effect both the leaving and mailing aspects of leave-and-mail service within twenty days of each other constitutes a jurisdictional defect. There, the leaving and mailing were alleged to have occurred within 29 days of each other, rather than twenty days as required by CPLR 308(2). The court reasoned: "A mailing sent within the wrong timeframe, like a mailing sent by the wrong method, increases the likelihood that a party will not receive proper notice of a legal proceeding." Id. at 1251. In Matter of Karl v. Martin, 127 A.D.3d 1294 (3d Dept. 2015), the Third Department held, in the tax assessment context, that service of a notice of petition and petition upon a designated assessment officer by certified mail, as opposed to first-class mail as required by RPTL §708(1), constitutes a jurisdictional defect. In Segway of N.Y. v. Udit Group, 120 A.D.3d 789 (2d Dept. 2014), the Second Department held, in the CPLR 3213 context, that the plaintiff's setting a return date prior to the defendant's time to appear pursuant to CPLR 308(2) constituted a jurisdictional defect, especially when coupled with the fact that the motion was also made returnable to the incorrect address. In Brown v. State of New York, 114 A.D.3d 632 (2d Dept. 2014), and Zoeckler v. State of New York, 109 A.D.3d 1133 (4th Dept. 2013), the Second and Fourth Departments held, respectively, that failure to strictly comply with the methods of service required by the Court of Claims Act (COCA) was jurisdictional. In both cases, the claimants had served the notice of intention upon the attorney general by regular mail, rather than certified mail (or personal delivery) as required by COCA §11(a)(i). In Pierce v. Vil. of Horsehead Police Dept., 107 A.D.3d 1354 (3d Dept. 2013), the Third Department held that the plaintiff's failure to strictly comply with CPLR 311(a)(4)'s requirement that service upon a county occur by personal delivery to "the chair or clerk of the board of supervisors, clerk, attorney, or treasurer," was jurisdictional.

The Appellate Division has also rendered at least five defects technical infirmities in direct reliance upon Ruffin. Three are particularly noteworthy. In Matter of Oneida Pub. Lib. Dist. v. Town Bd. of Town of Verona, 153 A.D.3d (3d Dept. 2017), the Third Department held that the omission of a return date on a notice of petition, though expressly required by CPLR 403(a), constitutes a technical infirmity where no demonstrable prejudice has accrued to the respondent. As the court found that the respondent had not been prejudiced by the omission, having conceded that it had "plenty of time to respond" to the petition and did not claim prejudice on appeal, it held that the omission should have been overlooked by the Supreme Court via CPLR 2001. In so holding, the Third Department expressly abrogated a line of its pre-Ruffin case law that had held that the omission of a return date was always jurisdictional. See, e.g., Matter of Oates v. Village of Watkins Glen, 290 A.D.2d 758 (3d Dept. 2002). The Fourth Department adopted Matter of Oneida's holding soon thereafter in Kennedy v. New York State Office for People With Developmental Disabilities, 62 N.Y.S.3d 253 (4th Dept. 2017). In Matter of Conti v. Clyne, 120 A.D.3d 884 (3d Dept. 2014), the Third Department held that service of papers by a party to the action, though in contravention of CPLR 2103(a), constitutes a technical infirmity. There, the petitioner had served the notice of petition and petition directly upon the respondent. While the court recognized disagreement as to whether such a defect is jurisdictional, it relied directly upon Ruffin and its own pre-Ruffin precedent in classifying it as a technical infirmity. See, e.g., Matter of Sullivan v. Albany County Bd. of Elections, 77 A.D.2d 959 (3d Dept. 1980). In Johns v. Van Brunt Motors, 89 A.D.3d 1188 (3d Dept. 2011), one of the first Appellate Division decisions to cite to Ruffin, the Third Department found that service of a summons with notice upon the defendant where the summons and complaint were the documents initially filed with the county clerk was a technical infirmity.

Still, not all defects have been re-examined by the Appellate Division in light of Ruffin. One notable example is failure to comply with the envelope requirements of CPLR 308(2) and (4). Cf. Hulse v. Wirth, 2019 Slip Op 06482 (2d Dept. 2019) (holding failure of proof of service to allege compliance with the envelope requirement—if in fact complied with—a mere irregularity). Both require that, where service is effected via leave- or nail-and-mail, a mailing to the defendant's actual place of business must bear the legend "personal and confidential" and may not indicate that it is from an attorney or concerns an action. Case law predating Ruffin consistently held that the defect was jurisdictional. See, e.g., Olsen v. Haddad, 187 A.D.2d 375 (2d Dept. 1992) (failure to label envelope "personal and confidential" deprived the court of personal jurisdiction); and Pesner v. Fried, 166 A.D.2d 512 (2d Dept. 1990) (holding same). In light of Ruffin, however, the answer is less clear: On the one hand, the defect does not decrease the likelihood of receipt, which would seem to render it a technical infirmity. On the other, however, Ruffin is arguably not implicated, as such "requirements are designed to spare the defendant embarrassment," David D. Siegel and Patrick M. Connors, supra, §72, not rooted in Ruffin's rationale of reasonably calculated notice. From this vantage point, the defect would seem to remain jurisdictional. As such, unless the appellate courts begin to hold otherwise, litigators cannot afford to overlook the defect. Thomas v. Halvey, 2019 Slip Op 33733(U) (Sup Ct, Kings County, 2019), a Supreme Court, Kings County, action recently dismissed for failure to comply with CPLR 308(4)'s envelope requirement, is a harsh reminder.

'Ruffin' at 10 Years

2020 marks the 10th anniversary of Ruffin. While it's holding ensures a road to forgiveness for plaintiffs who fail to strictly comply with the technical dictates of service, it has not rendered CPLR 2001 a panacea. Defects in the manner or methodology of service that decrease the defendant's likelihood of receipt remain fatal, while defects that do not may be forgiven absent a showing of substantial prejudice. The decision strikes a balance between the Legislature's preference for adjudication on the merits and defendants' rights to due process and notice. Whether the future trends in the direction of the former or latter remains to be seen.

Dean L. Pillarella is an associate at McGivney, Kluger, Clark & Intoccia's New York City office, where he focuses on civil rights and tort litigation in the corporate and insurance defense arena. He sits on the Legal History Committee of the New York City Bar Association and can be contacted at [email protected].