Background
ARCPE 1 commenced a Nassau County mortgage-foreclosure action in October 2024 against Yanira Salgado and others. Its process server claimed that he delivered the summons and complaint at the mortgaged property to a person identified as “Mrs. Salgado” and then completed a first-class mailing. Salgado challenged personal jurisdiction with evidence that she and her family were outside the country that day. Ring-doorbell video showed the server speaking with Salgado remotely and leaving papers at the property rather than delivering them to the person described in the affidavit.
Salgado moved under CPLR 3211 to dismiss the claim against her. The lender responded only after the service dispute arose, asking for more time under CPLR 306-b and for permission to use an alternative method under CPLR 308(5). Supreme Court accepted that approach, denied dismissal, and granted both forms of relief. The Second Department reversed, making the quality and timing of the plaintiff’s service efforts—not merely the existence of an attempted delivery—the decisive issue.
The Court’s Holding
CPLR 306-b requires service within 120 days after commencement but permits an extension for good cause or in the interest of justice. Good cause ordinarily requires reasonably diligent attempts at proper service. ARCPE did not meet that standard. The record showed no sustained effort to locate and serve Salgado through a method authorized by CPLR 308, and the challenged affidavit could not substitute for diligence once video evidence showed what actually occurred.
The broader interest-of-justice standard did not save the case. A court may weigh diligence, limitations consequences, potential merit, delay, promptness, and prejudice. Here, the lender showed a lack of diligence and did not demonstrate that limitations had expired or that its claim against Salgado was potentially meritorious. It also failed to show that ordinary personal, substituted, or nail-and-mail service was impracticable, a prerequisite to court-directed alternative service under CPLR 308(5). Without valid service, personal jurisdiction was absent and dismissal was required.
Key Takeaways
- Good cause under CPLR 306-b requires reasonably diligent efforts to accomplish service, not merely an unsuccessful attempt.
- An interest-of-justice extension needs facts addressing diligence, merit, limitations, delay, promptness, and prejudice.
- Alternative service under CPLR 308(5) requires a showing that the statute’s ordinary service methods are impracticable.
Why It Matters
New York litigators should treat CPLR 306-b applications as evidence-driven motions, not automatic repairs for a defective affidavit. Counsel should audit service before the 120-day period expires, preserve photographs, GPS data, doorbell communications, mailing proof, and attempt logs, and promptly authorize additional attempts when facts conflict with the server’s account. If an extension becomes necessary, the motion should address every interest-of-justice factor with admissible proof, including claim merit and the actual limitations posture.
Foreclosure counsel face an additional operational lesson because occupants, borrowers, record owners, and other interested defendants may not reside at the collateral address. A single visit followed by an inaccurate suitable-age-and-discretion recital can end the claim against that defendant. Before requesting expedient service, the plaintiff should document why each method in CPLR 308(1), (2), and (4) cannot practicably be used. Ring-camera evidence also means that courts can test traditional affidavits against an objective record.
The decision should be applied with close attention to procedural posture. A CPLR 3211 ruling asks whether pleaded facts fit a legal theory or whether qualifying documents conclusively defeat them; summary judgment instead asks whether admissible proof leaves a material dispute; and review after a nonjury trial gives special weight to credibility findings. Practitioners should use the opinion for the proposition it actually resolves and preserve the evidence the panel treated as decisive. Before relying on the holding in a new matter, counsel should compare the governing instrument, chronology, motion record, and requested remedy with those before the panel. Pleadings should separate genuinely independent theories, while affidavits should establish each required element rather than merely identify weaknesses in the opponent’s proof. Transactional and in-house teams can turn the result into a practical control by revising forms, retention policies, and escalation checklists around the specific failure or proof gap identified by the court. Early collection of signed agreements, notices, delivery records, photographs, expert materials, title documents, and contemporaneous communications will usually be less expensive than reconstructing the record after litigation begins. The opinion therefore offers both a legal rule and a file-management lesson: the party able to prove the operative events in the form the CPLR requires is best positioned to obtain an early, durable result.