Pena v R & B Transp.

Pena v R & B Transp. 2012 NY Slip Op 02389 Decided on March 29, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 29, 2012
Mazzarelli, J.P., Andrias, Moskowitz, Acosta, Abdus-Salaam, JJ.
7213 106041/07

[*1]Fanny Pena, Plaintiff-Appellant,

v

R & B Transportation, et al., Defendants-Respondents.




Luis Guerrero, New York, for appellant.
Law Offices of Charles J. Siegel, New York (Alfred T. Lewyn
of counsel), for respondents.

Order, Supreme Court, New York County (George J. Silver, J.), entered December 28, 2010, which granted defendants' motions to confirm a special referee's report and, accordingly, to dismiss the complaint for lack of personal jurisdiction, unanimously modified, on the law, to deny the motion as to defendant R & B Transportation (R & B), and otherwise affirmed, without costs.

Defendant R & B is a federally regulated motor carrier, covered by the Motor Carrier Act of 1935. Pursuant to that act, it appointed an agent for service of process in New York (49 USC 13304). The IAS court adopted the referee's finding that this was not a consent to jurisdiction over R & B in New York. This was error. We have previously addressed this precise question, and found that the appointment of an agent under the act is consent to suit in this State (Eagle v Hall & Sons, Inc., 265 AD 809 [1942]; see also Brinkmann v Adrian Carriers, Inc., 29 AD3d 615, 617 [2006]).

Truck driver Boyd, a Georgia resident, was driving from Florida to Massachusetts when the accident occurred in New Jersey. As such, there is no basis for personal jurisdiction over him (Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC, 90 AD3d 977 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 29, 2012

CLERK