Failure to Serve Order to Show Cause as Directed Jurisdictional Defect

On January 23, 2019, the Second Department issued a decision in Boucan NYC Café, LLC v. 467 Rogers, LLC, 2019 NY Slip Op. 00416, holding that the failure to serve an order to show cause was a jurisdictional defect, explaining:

We agree with the defendant's contention that the service requirements set forth in the order to show cause dated August 9, 2017, were jurisdictional in nature. The plaintiff's undisputed failure to comply with these requirements by serving the order to show cause pursuant to CPLR 308(4), instead of CPLR 311-a, deprived the Supreme Court of jurisdiction to entertain the plaintiff's order to show cause in the order dated August 16, 2017. Contrary to the plaintiff's contention, the defendant may challenge the validity of the order dated August 16, 2017, on the ground that the court was without jurisdiction to enter the order. Accordingly, the plaintiff's motion to hold the defendant in contempt for failure to comply with the order dated August 16, 2017, should have been denied.

(Internal citations omitted).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. This decision applies that rule to serving an order to show cause, which is a mechanism for bringing a motion before a court. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding the proper way to serve someone.