can a summons be served before filing with court?

[musze007]

What is the name of your state (only U.S. law)?
New York City/New York State

can a summons be served before filing with the court?
CPLR states that an action can be commenced by filing with the court, obtaining an index number and then serving the summons.

can a summons be served first and then filed with the court after serving?

in the event that a summons is served first, is this a violation and what happens with the court case?

 

[You Are Guilty]

What is the name of your state (only U.S. law)?
New York City/New York State

can a summons be served before filing with the court?
CPLR states that an action can be commenced by filing with the court, obtaining an index number and then serving the summons.

can a summons be served first and then filed with the court after serving?

in the event that a summons is served first, is this a violation and what happens with the court case?

How do you know is was not filed with the clerk's office before service?

 

[latigo]

If you’ve been served with process, you’d better govern your actions as if it is an effective service. Regardless of whether or not the action was commenced according to CPLR Section 304!

 

[musze007]

How do you know is was not filed with the clerk's office before service?

the clerks office stated when it was filed AND summons has a stamp that says "FILE DATE" (february 26, 2010)

summons sent 2 months prior. how is this possible (received around december 10, 2009)

affidavit of service lists a date prior to the file date, a date in january 2010.
this is all documented within the index number in court.

this makes no sense.

my original question remains though

 

[You Are Guilty]

What would you like to see happen?

As a practical matter, unless there is a statute of limitations issue, there is no judge on this planet who is going to care about the odd service/filing. You have been served, and the complaint is currently filed, which means the court will likely treat this like the other 1,000 cases on their calendar.

 

[justalayman]

so, when you were served the summons in December, did you act on it in any way or just ignore it?

Now that you are aware there is a suit filed and the identical summons has also been date stamped, have you responded to the summons?



basically, what is the problem?

 

[latigo]

basically, what is the problem?

The same problem as the Detroit Lions. No defense!

He's like the two neighbnors arguing over a survey line while their houses are burning to the ground.

 

[musze007]

it is impossible to serve summons with an index number attached if the summons was served prior to obtaining an index number with the court.

you guys can all laugh all you want but i see an FDCPA violation. especially if this was done to obtain a default judgment.

its a CPLR violation, its great to see you all agreed with that.

right

The same problem as the Detroit Lions. No defense!

He's like the two neighbnors arguing over a survey line while their houses are burning to the ground.

#26
http://www.nylj.com/nylawyer/adgifs/decisions/072309cuomo.pdf

thanks, but this time no thanks

 

[You Are Guilty]

it is impossible to serve summons with an index number attached if the summons was served prior to obtaining an index number with the court.

you guys can all laugh all you want but i see an FDCPA violation. especially if this was done to obtain a default judgment.

its a CPLR violation, its great to see you all agreed with that.

right


#26
http://www.nylj.com/nylawyer/adgifs/decisions/072309cuomo.pdf

thanks, but this time no thanks

Well you seem to have your answer then. Good luck!