The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 were read on this motion to DISMISS. DECISION ORDER ON MOTION Upon the foregoing documents, the defendant’s motion to dismiss the complaint is denied for the reasons set forth in the affirmation in opposition of Michael DiGiaro, Esq. (NYSCEF Doc. No. 11), in which the court concurs, as summarized herein. Defendant moves to dismiss for lack of both subject matter and personal jurisdiction. In determining a motion to dismiss for lack of subject matter jurisdiction, the court must consider that, as a court of general jurisdiction, the Supreme Court “is competent to entertain all causes of actions unless its jurisdiction has been specifically proscribed” (Matter of Fry v. Vil. of Tarrytown, 89 NY2d 714, 718 [1997]). “Lack of jurisdiction should not be used to mean merely that elements of a cause of action are absent, but that the matter before the court was not the kind of matter on which the court had power to rule” (Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 21 NY3d 200, 203 [2013] [internal citations and quotation marks omitted]). “Absence of competence to entertain an action deprives the court of subject matter jurisdiction; absence of power to reach the merits does not” (Lacks v. Lacks, 41 NY2d 71, 75 [1976] [internal citations and quotation marks omitted]). Here, defendant raises defects in the summons and in service of process, both of which are potential defects in personal, rather than subject matter, jurisdiction (e.g. Lowenbraun v. McKeon, 98 AD3d 655, 656 [2d Dept 2012]). Turning to personal jurisdiction, defendant first argues that the summons is defective, inasmuch as it states that, if service is accomplished upon someone other than defendant, defendant shall have 30 days from the filing of proof of service to appear and respond to the complaint (summons, NYSCEF Doc. No. 1). This is in error, as CPLR 308(2) provides that service is complete ten days following filing of proof of service, effectively allowing 40 days from filing to appear and respond to the complaint. Defendant’s argument that this error is a jurisdictional defect requiring dismissal, however, is unpersuasive. As a general matter, the complete failure to specify a return date on a summons is not a jurisdictional defect (Oparaji v. Weston, 271 AD2d 589, 589 [2d Dept 2000]). The same should be true where a plaintiff merely specifies an incorrect date. In addition, CPLR 2001 provides that “At any stage of an action…the court may permit a mistake, omission, defect or irregularity…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.” Here, defendant shows no prejudice from plaintiff’s error. Defendant next challenges the absence of the Notice of Commencement of an Action Subject to Mandatory Electronic Filing from the papers served upon him. The Uniform Rules for Trial Courts provide that such a notice must be served along with the initiatory papers at the commencement of the case (Uniform Rules for Trial Cts [22 NYCRR] §202.5-bb[b][3]). However, where, as here, defendant had notice of the electronic filing, electronically filed a response to the complaint, and suffered no prejudice, the failure to serve such a notice is not a jurisdictional defect requiring dismissal (Matter of 44 Lexington Assoc., LLC v. Supreme Sec. Sys., Ltd., 139 AD3d 517, 518 [1st Dept 2016]). Finally, defendant challenges service of process. CPLR 308(2) provides for service by delivery to a person of suitable age and discretion and follow-up mailing, and proof of service must be filed with the court within twenty days of the later of the two acts comprising service. Here, plaintiff served defendant by delivery on October 3, 2020, and by mailing on October 6, 2020, and filed proof of service October 8, 2020 (affidavit of service, NYSCEF Doc. No. 2). “Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” (US Bank Nat. Ass’n v. Ramos, 153 AD3d 882, 884 [2d Dept 2017]). “Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing” (id.). Here, defendant asserts, without any specific facts substantiating his assertion, that he never received the mailed copy of the initiating papers. Such denial is insufficient to rebut the presumption of proper service. Defendant also asserts that the process server’s affidavit is incorrect, in that the process server did not actually ask the person he left the papers with whether defendant was in active military service. Defendant asserts that this casts doubt on the veracity of the entire affidavit, but does not dispute the affidavit’s statement that he is not actually in military service. Moreover, his military status is not relevant to the statutory requirements for service. Accordingly, it is hereby ORDERED that the motion is denied; and it is further ORDERED that defendant is directed to answer the complaint within 20 days of the date of filing hereof; and it is further ORDERED that the parties shall appear for a preliminary conference in Room 1166, 111 Centre Street, New York, New York, on October 18, 2023, at 10:00 AM. This constitutes the decision and order of the court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: September 5, 2023
