They say you were served. What if you were not?

Service of process is not a formality. New York prescribes exactly how a summons must reach a defendant, and a defect in that process is jurisdictional. If you were not served in a manner the statute permits, the court never acquired jurisdiction over you, and any default judgment entered against you is a nullity. That objection perishes fast.

What does improper service actually mean in a New York lawsuit?

Improper service means the summons and complaint did not reach you by one of the methods New York law permits. Service of process upon a natural person must be made in strict compliance with CPLR 308. A court lacks personal jurisdiction over a defendant who is not properly served. Every step taken afterward is void as to you.

The rule is unforgiving. Service of process is carefully prescribed by the Legislature, and courts decline to add exceptions the statute omits. Papers left at a house you moved out of two years ago fail. That house is not your dwelling place. Learning of the lawsuit afterward does not repair the defect. A relative once assured a server that the defendant lived there. He did not. The service was still defective.

Know what winning gets you. Dismissal for defective service is without prejudice, and under CPLR 306-b the court may instead extend the plaintiff’s time to serve. The defense still matters. It can be fatal once the limitations period has run, and it is the only defense that strips the court of power over you.

Law: CPLR 308; CPLR 306-b; CPLR 3211(a)(8); Everbank v Kelly, 203 A.D.3d 138 (2d Dept 2022); Dorfman v Leidner, 76 N.Y.2d 956 (1990).

How was I required to be served if I was sued as an individual?

An individual defendant in New York must be served under one of the methods set out in CPLR 308. Four matter in practice: personal delivery, deliver-and-mail, affix-and-mail after due diligence, and court-ordered alternative service. Each has its own mechanics, and the mechanics are the whole point.

Check three mechanics against the affidavit in your file. Under CPLR 308(2) and 308(4), the delivery or affixing and the mailing must occur within twenty days of each other. Proof of service must then be filed within twenty days of the later one. And a mailing to your place of business had to bear the legend “personal and confidential” and show nothing outside indicating an attorney sent it.

One distinction decides most of these fights. The delivery under CPLR 308(2), and the affixing under CPLR 308(4), must happen at your actual dwelling place, usual place of abode or actual place of business. The mailing need not: it may go to your last known residence. A copy mailed to an address you left years ago is therefore no defect. The delivery or affixing there is.

Law: CPLR 308(1), (2), (4), (5) and (6); Feinstein v Bergner, 48 N.Y.2d 234 (1979).

What is due diligence, and why does affix-and-mail fail so often?

Due diligence means the plaintiff genuinely attempted personal delivery and deliver-and-mail before resorting to taping the summons to a door. Affix-and-mail under CPLR 308(4) is available only where service under CPLR 308(1) and (2) cannot be made with due diligence. It is the last resort, not the convenient first one.

The Second Department requires that standard to be strictly observed, given the reduced likelihood that such a summons is ever received. Quality of the attempts matters, not quantity, and servers must genuinely inquire about where you live and work. So check the times and days of every attempt. Three visits at the same hour to a door nobody answers is not diligence.

Law: CPLR 308(4); Estate of Waterman v Jones, 46 A.D.3d 63 (2d Dept 2007).

How was my corporation or LLC required to be served?

A corporation or LLC can be reached two principal ways. Under CPLR 311 and CPLR 311-a, process may be delivered to a human being holding a specified role: an officer, director or managing agent of the corporation, or a member or manager of the LLC. Alternatively, the plaintiff may serve the Secretary of State as the entity’s statutory agent.

The second route is the common one, and it produces the surprise judgments. The plaintiff delivers duplicate copies in Albany or submits the process electronically. Service is complete when the Secretary of State is served, or when the Department of State accepts the submission. The Department then forwards the papers to the address on file. Service was complete in Albany, whether or not they reached your desk.

CPLR 317 supplies a remedy, because delivery to the Secretary of State is not personal delivery. But it is discretionary, and the entity must still show it lacked actual notice in time to defend and has a potentially meritorious defense. That first element is where these motions fail.

Law: CPLR 311(a)(1); CPLR 311-a; CPLR 317; Business Corporation Law 306(b); Limited Liability Company Law 303(a); Munro v Christsouljah, Inc., 2026 NY Slip Op 02990 (2d Dept 2026).

What is a traverse hearing, and how do I get one?

A traverse hearing is an evidentiary hearing on the single question whether you were properly served. The process server’s sworn affidavit of service is prima facie evidence of the method of service and creates a presumption of proper service. A sworn denial containing specific facts rebuts that presumption and necessitates a hearing.

The word carrying the weight is “specific.” A bare statement that you were never served rebuts nothing. What is required is a detailed contradiction of the facts the server swore to.

• Where you actually lived that day. A license issued before the service date, the lease or deed, utility bills, voter registration. Any one can be brushed aside. Together they establish residence.
• Who the server says took the papers. If the affidavit names a person of suitable age and discretion, identify who was actually there and get that person’s affidavit. Compare the recorded age, height, weight and hair color against that person.
• The building. Doormen, keyed elevators and locked lobbies routinely contradict an account of a server walking up to a door.

Once the presumption is rebutted, the burden rests on the plaintiff. At a hearing on the validity of service, the burden of proving personal jurisdiction is on the party asserting it. The server testifies, the affidavit is tested against the logbook, and the judge decides credibility.

An affidavit that says only “I was never served” loses. One that says where you were, who was home, and what address your license carried that year earns a hearing.

Law: CPLR 3211(a)(8); Citimortgage, Inc. v Goldstein, 230 A.D.3d 1219 (2d Dept 2024); Wells Fargo Bank, N.A. v Enitan, 200 A.D.3d 736 (2d Dept 2021); Everbank v Kelly, 203 A.D.3d 138 (2d Dept 2022).

I moved and never told anyone. Does that sink me?

Moving without updating your address ordinarily does not forfeit the objection. The Court of Appeals has recognized that potential defendants have no affirmative duty to keep those who might sue them abreast of their whereabouts. Failing to update an address with the plaintiff, the Postal Service or the Department of Motor Vehicles is inaction, and inaction is not evasion.

The exception is estoppel. A defendant whose affirmative conduct misled the plaintiff into serving at an incorrect address may be barred from contesting it. Handing a police officer a license bearing a former address after an accident, and never correcting it, is the standard example. Never notifying the DMV is not. The Second Department has held that failure, standing alone, is not a deliberate attempt to avoid service.

Law: Feinstein v Bergner, 48 N.Y.2d 234 (1979); Castillo-Florez v Charlecius, 220 A.D.3d 1 (2d Dept 2023); Citimortgage, Inc. v Goldstein, 230 A.D.3d 1219 (2d Dept 2024).

How long do I have before the improper service defense disappears?

The improper service objection is powerful and perishable. Lack of personal jurisdiction is a waivable defense. If you appear in the action and fail to raise the objection in the right place at the right time, you hand the court the very jurisdiction it lacked. The deadlines below decide whether the defense survives.

The sixty-day rule destroys good defenses quietly. Pleading improper service in your answer preserves the objection, but only for sixty days. CPLR 3211(e) requires you to move for judgment on that ground within that period, absent an extension for undue hardship. Miss it and it is gone.

Law: CPLR 320(a) and (b); CPLR 3211(a)(8) and (e); CPLR 5015(a)(4); CPLR 317.

A judgment was already entered against me. Is it too late?

A default judgment entered without personal jurisdiction is void. CPLR 5015(a)(4) permits the court that rendered a judgment to relieve a party from it on the ground of lack of jurisdiction to render the judgment, and the statute states no deadline for that motion. Where the objection is jurisdictional, the court resolves that question first.

There is a further advantage. Vacating a default ordinarily requires a reasonable excuse and a potentially meritorious defense. Where the defense is lack of personal jurisdiction, that requirement is obviated. You need not argue the merits to undo a judgment the court could not enter. Two limits, though. The objection must have survived, so a defendant who appeared and litigated without raising it has nothing left. And vacatur kills the judgment, not the claim.

A default judgment entered without personal jurisdiction is not a strong judgment or a weak one. It is a nullity.

Law: CPLR 5015(a)(4); CPLR 306-b; ICBC Broadcast Holdings-NY, Inc. v Prime Time Adv., Inc., 26 A.D.3d 239 (1st Dept 2006).

What this means for you

Start with the affidavit of service. It is a short sworn document filed by the plaintiff’s process server, and in a service fight it is the most important paper in the case. Everything the plaintiff must prove is on it, under oath.

1. Find the affidavit of service and read every line. Note the address, the date and time, the method claimed, who accepted the papers, and the description recorded.
2. Calculate your response date and write it down. Twenty days if the summons was handed to you in New York. Thirty days after service is complete for every other method, and for service outside the state.
3. Answer one question before anything else. If the papers were not handed to you personally, was the address on the affidavit your actual dwelling place, usual place of abode, or place of business that day? Judge the delivery or affixing by it, not the mailing.
4. Collect the documents that fix where you were. The license in your wallet, the lease or deed, utility and tax bills, voter registration. Dated before the service date, they carry the most weight.
5. If an entity was sued, pull its Department of State record. Compare the address and email on file against where you actually receive mail today.

If the answer to step three is no, you were not served, and the court has no jurisdiction over you. That is a defense to the entire action, not an argument about the merits. It will not always end the lawsuit, because dismissal is without prejudice. It is still the one defense that disappears if you sit with it.