Petitioners, Erno and Malka Goldberger (the Goldbergers) move for an order pursuant to CPLR 5206(e) directing the sale of certain homestead property belonging to respondents Sholom and Pessi Eisner (the Eisners)^[FN1]. Respondents oppose the petition on the ground that the court lacks jurisdiction because they were never served with any papers in this case.

Respondents' affirmation in opposition consists of a joint affirmation of the respondents and one exhibit. Exhibit A is a County Clerk printout listing the procedural history of a Kings County Supreme Court action bearing index number 17302/02. [*2]

Petitioner's affirmation in reply to respondents' opposition consists of an attorney's affirmation and three exhibits. Exhibit A are copies of the affidavits of service for the notice of petition and request for judicial intervention. Exhibit B is a another attorney's affirmation in support of the petitioner's reply. Exhibit C is a copy of the request for judicial intervention.

Background

Petitioners' affidavits of service of the notice of petition, petition and request for judicial intervention states that the process server, Abraham Franco, served Sholom Eisner by personal delivery of said papers on January 23, 2008 to "Jane" Eisner., a white female, aged 80 at 1427 58th Street, Brooklyn, NY 11219. Ms. Eisner allegedly refused to give her first name to the process server. The papers were mailed to the same address the same day,.

Petitioners' other affidavits of service of the notice of petition, petition and request for judicial intervention states that the process server, Abraham Franco, served Pessi Eisner by personal delivery of said papers on January 23, 2008 to "Jane" Eisner., a white female, aged 80 at 1427 58th Street, Brooklyn, NY 11219. The female individual refused to give her first name to the process server. The papers were mailed to the same address the same day.

The notice of petition served on each respondent had a return date of March 5, 2008. The affidavits of service for the notice of petition were filed on April 30, 2008. Oral argument occurred on May 2, 2008.

Respondents claim that they have never been served with any papers in this case. They state that "[w]e became aware of this case through a search that my brother was trying to find in the county clerk's office . . . about the other case under Index 17302/02, under the name Eisner, and the name Eisner in this case came up between the others." They also claim that the court lacks jurisdiction because at the time of commencement, the Request for Judicial Intervention (RJI)I was not filed with the petition, and that the affidavits of service were not timely filed.

Petitioners contend that (1) this proceeding was commenced by filing on January 18, 2008, and (2) respondents were properly served with the Petition, Notice of Petition, and Request for Judicial Intervention (RJI) on January 23, 2008 pursuant to CPLR 308(2) (person of suitable age and discretion) at respondents' dwelling, and by mail. They further agree that the affidavits of service were not filed within 20 days of service, but argue that same does not constitute a jurisdictional defect which extinguishes a respondent's obligation to answer.

CPLR §403 [b] states in pertinent part:

A notice of petition, together with the petition and affidavits specified in the notice, shall be served on any adverse party at least eight days before the time at which the petition is noticed to be heard.

CPLR §403 [c], states, in pertinent part, that:

A notice of petition shall be served in the same manner as a summons in an action.

CPLR 308(2) states, in pertinent part, that:

where the summons is delivered to a person of suitable age and discretion and then mailed, "proof of service shall be filed with the clerk of the court designated in the summons within [*3]twenty days of either such delivery or mailing, whichever is effected later . . . Service shall be complete ten days after such filing.

The Notice of Petition was filed on January 18, 2008 and marked with a return date of March 5, 2008. Pursuant to CPLR §403, service of the petition would need to be completed eight days prior to the return date. Service of the petition was performed pursuant to CPLR §308 (2). The petition was delivered to a person of suitable age and discretion and mailed on January 23, 2008. The affidavits of service of the petition were not filed until April 30, 2008, well past the original return date and only a few days before the actual oral argument on May 2, 2008. Pursuant to CPLR §308 (2), affidavits of service must be filed within twenty days of delivery and service is considered completed 10 days after filing. The petitioners filed their affidavits of service well past the twenty days of delivery and mailing to respondents.

It is well settled that the failure to file proof of service pursuant to CPLR 308 is a mere irregularity (see Hausknecht v Ackerman, 242 AD2d 604 [1997]; Weininger v Sassower, 204 AD2d 715 [1994]; see also Reporter Co., Inc. v Tomicki, 60 AD2d 947 [1978]) [" (f)ailure to file is an irregularity, curable by motion, if, under the facts, the court in the exercise of discretion deems it best"]). Indeed, CPLR 2004 permits a court to "extend the time fixed by any statute, rule or order for doing any act upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed (see Alexander, Practice Commentaries [McKinney's Cons Laws of NY, Book 7B, CPLR 2004].

However, as noted, a motion setting forth good cause for the delay must be made to have such late filing deemed timely (see Alexander, Practice Commentaries, supra ["Extensions of time are not free for the asking"], and in the present context, the Goldbergers' bare acknowledgment of the fact of the delay in their reply papers is insufficient (see Koslowski v Koslowski, 251 AD2d 294 [1998] [denial of plaintiff's application to correct, nunc pro tunc, late filing of proof of service, first interposed in reply papers held to be proper exercise of discretion]), and the court declines to consider this matter sua sponte (see County of Nassau v Gallagher, 35 AD3d 786 [2006]).

Petitioners have failed to comply with CPLR §§403 and 308. Without proper service of the notice of petition, the court lacks jurisdiction over the respondents. The petition is therefore dismissed.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.