Long Is. Garage Door Co. v. Stafford

In Long Is. Garage Door Co. v. Stafford (53 Misc. 2d 568 [Nassau Dist Ct 1967]) plaintiff sought an order amending the summons nunc pro tunc. Service was made outside Nassau County and served in Suffolk County. The court stated that service of the summons outside Nassau County was void and deprived the court the ability to allow amendment of the summons unless service was specifically authorized. The court stated (at 569): "A somewhat different situation presents itself here. In this case, the summons was served outside the territorial jurisdiction of this court. This can be validly done only under certain statutorily prescribed circumstances. (See USDCA, 403, 404.) "It may well be that one reason formal pleadings are required by the statute where service is made without the county is to apprise the defendant of what the jurisdictional basis for such service is, if any, and to enable him to attack jurisdiction if he were so advised. "CPLR 320 (subd. [b]) provides that objection to jurisdiction over the person must be raised by answer or motion or it is waived. "The court cannot act to direct an amendment of the summons unless it has jurisdiction. Certainly, a summons served outside the territorial jurisdiction of this court is void except as specifically provided for (UDCA, 403). Even an appearance by defendant will not confer jurisdiction where personal jurisdiction is based solely upon section 404 of the UDCA if the cause does not, in fact, arise out of an act enumerated therein. "It is incumbent upon the plaintiff to demonstrate that this court, at least prima facie, has jurisdiction here and that service outside the county was properly authorized."