Matter of Vargas v State of New York

Matter of Matter of Vargas v State of New York 2012 NY Slip Op 03749 Decided on May 10, 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 May 10, 2012
Friedman, J.P., Sweeny, DeGrasse, Abdus-Salaam, Román, JJ.
7626 103126/11

[*1]In re Hector Vargas, Petitioner-Appellant,

v

State of New York, et al., Respondents-Respondents.




Hector Vargas, appellant pro se.
Eric T. Schneiderman, Attorney General, New York (Ann P.
Zybert of counsel), for respondents.

Proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Robert E. Torres, J.], entered September 26, 2011), seeking to annul a determination of respondent New York State Department of Motor Vehicles (DMV), dated January 28, 2011, which, after a hearing, affirmed petitioner's traffic conviction and imposed a fine of $130, unanimously dismissed, without costs.

Upon exercising our power to review Supreme Court's order denying respondents' cross motion to dismiss this proceeding on procedural grounds (see CPLR 7804[g]; Matter of Wittie v State of N.Y. Off. of Children & Family Servs., 55 AD3d 842, 843 [2008]; Matter of Desmone v Blum, 99 AD2d 170, 177 [1984]), we find that respondent's cross motion should have been granted. It is undisputed that petitioner never served the notice of petition and petition upon respondent DMV's chief executive officer or a person designated by the chief executive officer to receive service (CPLR 307[2]). DMV's receipt of the notice of petition and petition from the Attorney General's office did not provide personal jurisdiction over the DMV (see Matter of Lowney v New York State Div. of Human Rights, 68 AD3d 551, 551 [2009]). Further, respondent State of New York is not a proper party to this proceeding since it is not a "body or officer" within the meaning of CPLR 7802(a) (see Kirk v Department of Motor Vehs., 22 AD3d 240, 241 [2005]). Were we to address the merits of the petition, we would find that substantial evidence supports the DMV's determination.

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

ENTERED: MAY 10, 2012

CLERK