Garden City, NY asked in Divorce, Foreclosure, Real Estate Law and Collections for New York

Q: If a mailing and affidavit was done in accordance with CPLR 3215(g)(3)(i) and that mailing was returned from the usps

with a forwarding address, can the CPLR 3215 g Affidavit of Additional Mailing be amended with new date AND forwarding address? OR, does a totally new Affidavit have to be done?

3 Lawyer Answers
Michael David Siegel
Michael David Siegel
Answered
  • Foreclosure Defense Lawyer
  • New York, NY
  • Licensed in New York

A: The initial mailing is fine, if the address was proper to begin with. You are affirming the mailing, not what happened to it.

Jonathan David Warner agrees with this answer

Elaine Shay
Elaine Shay
PREMIUM
Answered
  • Foreclosure Defense Lawyer
  • New York, NY
  • Licensed in New York

A: Generally, an Affidavit of Service cannot be amended at a later date. Instead another later Affidavit would be executed. I respectfully disagree with my colleague's opinion that you can essentially ignore the returned mailing attempt. The statute clearly states the mailing must be made "to the defendant at his place of residence" and if the mail was returned with a forwarding address you now know you did not complete a mailing to defendant at "his place of residence". Since it appears the purpose of the statute is to provided actual notice, failing to address this issue correctly now could be grounds for a judgment to be latter attacked.

Jonathan David Warner agrees with this answer

Jonathan David Warner
Jonathan David Warner
Answered
  • Foreclosure Defense Lawyer
  • Albany, NY
  • Licensed in New York

A: I'm going to agree with the first answer.

An Affidavit of Service indicates that service was rendered, not necessarily that service was ultimately successful. If the mail was ultimately forwarded to a different address, and was returned as undeliverable, it demonstrates that you likely took all reasonable steps to provide the Defendant with Notice of the lawsuit. While the Defendant's failure to be served may provide grounds to later attack the judgment, most Courts are more concerned with the validity of the debt - that is, even if the judgment were somehow Vacated, the debt would remain.

If you really want to cover your bases, consider forwarding a copy of the Notice of Entry to wherever you think that Defendant might be living, in addition to the original address. At least then you can demonstrate that you did everything you could to comply with the statute.

Good luck!

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