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Second Department Rules That Even On A Friday, “Overnight Delivery” Means Exactly That

On Behalf of | Feb 9, 2019 | Appellate Rules, Civil Appeals, Civil Litigation |

While many issues connected to the service of litigation papers under the CPLR have been lessened by the advent of electronic filing, some issues remain. Surprisingly, one such issue appears to have been the proper effectuation of service upon counsel via overnight mail.

CPLR 2103(b), which governs service upon an attorney, provides various avenues for such service. One alternative, under CPLR 2103(b), is to serve “by dispatching the paper to the attorney by overnight delivery service” (see, CPLR 2103[b][6]). The statute defines an “overnight delivery service” as “any delivery service which regularly accepts items for overnight delivery to any address in any state.” When using overnight delivery, one business day is added to the prescribed period.

Clearly, the statute’s message is that when one uses an overnight delivery service, the additional day is meant to take into account the one extra day required to effectuate service [i.e., overnight]. Thus, in Moran v. BAC Field Servs. Corp. (164 AD3d 494 [2d Dept., 2018]), the Second Department ruled that the defendant’s deposit of its motion papers with Federal Express on Friday for the weekday delivery on the following Monday constituted a failure of overnight delivery service.