If a civil suit is filed with the county clerk, but not served and more than 120 days have passed, how do you get it dismissed?

Asked about 2 years ago - Colton, NY

A party filed a suit (summons and complaint) with the county clerk, but never served the papers, I understand that there are 120 days to serve the summons and complaint on the defendants in New York State, what happens if the deadline passes? We believe this to have been a frivolous filing, and want to get it officially dismissed, is advisable or appropriate to make a motion for dismissal so that this can be put to rest, and what are the chances that the court would allow service after the 120 days and hence open the suit back up, so to speak?

Attorney answers (2)

  1. Eric Edward Rothstein

    Contributor Level 20

    1

    Lawyer agrees

    Answered . The plaintiff can make a motion to extend the time to serve; the plaintiff will have to show he/she exercised due dilligence in trying to serve within the 120 days. There is no point in making a motion to dismiss because the plaintiff can still file the case again if it is within the applicable statute of limitations as the "dismissal" for failing to serve the papers within 120 days is not on the merits.

    I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases.... more
  2. Paul Karl Siepmann

    Pro

    Contributor Level 18

    Answered . Unless there is some reason other than "peace of mind", for instance if the suit also involved the filing of a Lis Pendens against your property, there is no good reason to do anything at all until you are served.

    I am not your attorney and any posts/messages or responses to posts/messages can not establish an attorney-client... more

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