Ray v Latin Am. Mkt.

[*1] Ray v Latin Am. Mkt. 2004 NY Slip Op 51491(U) Decided on December 1, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
2003-1490 K C

DELORES RAY, Appellant,

against

LATIN AMERICAN MARKET and ANDRES VARGAS, Respondents.

Appeal by plaintiff from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered April 18, 2002, granting defendants' motion to vacate the default judgment and dismiss the complaint.

Order unanimously affirmed without costs.

Plaintiff commenced this action against incorrectly named defendants, in November 1996, to recover damages for personal injuries she sustained in a fall. Thereafter, plaintiff was allowed to serve summonses and amended verified complaints naming the correct defendants which were deemed served, nunc pro tunc, as of April 1997. A default judgment was subsequently entered against defendants, who moved to vacate the judgment on the ground that they were not properly served and the court did not have personal jurisdiction over them (see CPLR 5015 [a] [4]). A traverse hearing was held, after which the court below determined that service was improper, vacated the default judgment and dismissed the complaint.

A review of the record indicates that defendant Latin American Market is not a corporation; rather, it is the name of a sole proprietorship owned by defendant Andres Vargas. Therefore, plaintiff was required to effectuate service pursuant to CPLR 308 (see e.g. Steele v Hempstead Pub. Taxi, 305 AD2d 401 [2003]). Inasmuch as the testimony adduced at the traverse hearing indicates that the process server handed Ms. Lora, an employee of Latin American Market and relative of Vargas, the summons and amended complaint, we find that plaintiff properly delivered the documents to a person of suitable age and discretion at Latin American Market (Vargas' actual place of business). Service of process on an employee who [*2]may be reasonably expected to convey the papers to the intended party establishes an all but conclusive presumption of valid service (see Grasso v Matarazzo, 288 AD2d 185 [2001]). The process server also attempted substituted service upon Vargas at an incorrect dwelling place or usual place of abode.

However, pursuant to 308 (2), plaintiff was also required to have copies of the summons mailed to Vargas at his last known residence or his actual place of business, by first class mail, in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication
is from an attorney or concerns an action against the person to be served. Inasmuch as the only mailing by the process server was to Vargas at an incorrect last known residential address, plaintiff failed to effectuate service pursuant to CPLR 308 (2) (see Steele, 305 AD2d at 402). Accordingly, we find that the court below did not obtain personal jurisdiction over defendants, and properly vacated the default judgment and dismissed the complaint.
Decision Date: December 01, 2004