People v Bowman (Madison)

[*1] People v Bowman (Madison) 2018 NY Slip Op 28406 Decided on December 13, 2018 Appellate Term, Second 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 printed Miscellaneous Reports.

Decided on December 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
2016-626 S C

The People of the State of New York, Respondent,

against

Madison Ann Bowman, Appellant.

Scott Lockwood of counsel, for appellant. Suffolk County Traffic Prosecutor's Office (Leonard G. Kapsalis and Dennis M. Brown of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Paul H. Senzer, J.H.O.), entered February 23, 2016. The order denied defendant's motion to vacate a judgment of that court entered October 30, 2015 imposing a civil liability in the sum of $50, plus an administrative fee of $30 and a late fee of $25, upon defendant's failure to appear or answer a red-light camera violation.

ORDERED that the order is reversed, without costs, defendant's motion to vacate the October 30, 2015 judgment is granted, and the notice of liability is dismissed.

In a notice of liability for a red-light camera violation, dated August 4, 2014, and issued pursuant to Vehicle and Traffic Law § 1111-b and Suffolk County Local Law § 20-2009, it was alleged that a vehicle with Nevada plates, that was registered to Madison Ann Bowman, at an address in Las Vegas, Nevada 89106, did not stop for a red light on July 11, 2014, at 1:06 p.m., while traveling eastbound at the intersection of Motor Parkway (County Road 67) and Joshua's Path (NY 111), in violation of Vehicle and Traffic Law § 1111 (d). The notice stated that a fine of $50, plus an administrative fee of $30, would be imposed and was due by September 3, 2014. The notice further advised defendant that there would be a $25 fee for delinquent payments and that the failure to pay or adjudicate the violation would result in "collection activity." The record demonstrates that a notice of liability was sent to defendant via first class mail to her address of record in Nevada, in accordance with Vehicle and Traffic Law § 1111-b (g) (1). After defendant failed to respond to the notice, a default judgment in the amount of $105 was entered against her by the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, on October 30, 2015.

Defendant subsequently moved, with the aid of counsel, to vacate the default judgment and dismiss the charge, pursuant to CPLR 5015 (a) (4), based upon a lack of personal jurisdiction, [*2]contending that she resides in Nevada and that the exercise of long-arm jurisdiction was not proper since she rarely visits New York, she does not conduct any business here, she does not own any property here, and she did not commit a tortious act within the state. The County of Suffolk (County) opposed the motion, contending that there is no requirement, under either Vehicle and Traffic Law § 1111-b or Suffolk County Local Law § 20-2009, for a person to be a New York State resident in order to be held liable for a red-light camera violation. In an order entered February 23, 2016, the court denied defendant's motion as premature, noting that the record was silent as to whether the County had ever attempted to commence litigation or any enforcement action on the default judgment. On appeal, defendant contends, among other things, that the court lacked personal jurisdiction over her since she resides in Nevada and that, in order for the court to have exercised its long-arm jurisdiction, there had to have been some act by which she purposefully had availed herself of the privilege of conducting activities within this state thereby invoking the benefit and protections of its laws.

At the outset, it should be noted that, since defendant's liability had already been adjudicated based upon her failure to respond to the notice of liability, her motion to vacate the default judgment was not premature.

This court has previously determined that red-light camera actions are wholly civil in nature (see People v Davidowitz, 51 Misc 3d 59 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; County of Suffolk v Caldone, 45 Misc 3d 1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Nager, 34 Misc 3d 135[A], 2011 NY Slip Op 52390[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; see generally Hudson v United States, 522 US 93, 99-100 [1997]; see also Bevis v City of New Orleans, 686 F3d 277, 280 [5th Cir 2012]; Mendenhall v City of Akron,374 Fed Appx 598 [6th Cir 2010]; Fischetti v Village of Schaumberg,967 NE2d 950 [Ill App Ct 2012]; City of Creve Coeur v Nottebrok, 356 SW2d 252 [Mo Ct App 2011]). In a civil matter, with certain exceptions, in order for the courts of New York to obtain personal jurisdiction over an out-of-state resident, who was served out of state, they must use their long-arm jurisdiction (see Keane v Kamin, 94 NY2d 263, 265 [1999]). To satisfy this jurisdictional basis, there must be a constitutionally adequate connection between the defendant, the state—or more specifically in this matter, the County (see UDCA 404 [a])—and the action (see BNSF Ry. Co. v Tyrrell,___ US ___, 137 S Ct 1549 [2017]; Daimler AG v Bauman, 571 US 117 [2014]; Burger King Corp. v Rudzewicz, 471 US 462, 475 [1985]; World-Wide Volkswagen Corp. v Woodson, 444 US 286, 291 [1980]; International Shoe Co. v Washington, 326 US 310, 315 [1945]). In the instant matter, the District Court of Suffolk County's exercise of personal jurisdiction over defendant hinges on its long-arm powers under UDCA 404 (a), and general principles of jurisdiction.

UDCA 404 (a) provides:

"Acts which are the basis of jurisdiction. The court may exercise personal jurisdiction over any non-resident of the county, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state and a resident of the county, if, in person or through an agent, he:1. transacts any business within a district of the court in the county; or2. commits a tortious act within a district of the court in the county, except as to a cause of action for defamation of character arising from the act; or3. owns, uses or possesses any real property situated within a district of the court in the [*3]county."

Here, based upon the statements made by defendant in her affidavit, which the County failed to rebut, the District Court could not have exercised personal jurisdiction over her under UDCA 404 (a) (1) or (3). Furthermore, while a violation of either a penal statute or a nonpenal statute may, under appropriate circumstances, constitute a civil tort (see Lopes v Rostad, 45 NY2d 617 [1978]; Gifford v Harley, 62 AD2d 5 [1978]; 103 NY Jur 2d, Torts § 15), the violation that occurred here cannot be considered a tortious act since there was no actual resulting damage or injury, such as a vehicular accident or collision, stemming from defendant's vehicle's running of the red light. Thus, the District Court could not have exercised personal jurisdiction over defendant under UDCA 404 (a) (2). In opposition to defendant's motion, the County failed to come forward with sufficient evidence to prove the existence of jurisdiction (see Fischbarg v Doucet, 9 NY3d 375, 381 [2007]), and, despite its contention that the provisions of Vehicle and Traffic Law § 253 should apply in this matter, even though defendant was not involved in an accident or a collision, the County in any event failed to serve defendant through the Secretary of State, as required under that statute (see Vehicle and Traffic Law § 253[2]). Consequently, in the instant matter, the court did not acquire personal jurisdiction over defendant under UDCA 404 (a), or in any other manner, and thus the court's entry of a default judgment against her was an improper exercise of long-arm jurisdiction.

Accordingly, the order is reversed, the motion to vacate the default judgment is granted, and the notice of liability is dismissed.

MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2018