Louise Ruffin v. Lion Corp.
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 196
Louise Ruffin,
Appellant,
v.
Lion Corp., &c., et al.,
Respondents.
David S. Kritzer, for appellant.
Ronald L. Daugherty, for respondents.
PIGOTT, J.:
Plaintiff Louise Ruffin was injured while riding as a
passenger on a tour bus in New York City on December 4, 2000.
She filed a timely summons and complaint, naming as defendants
both the bus driver and the tour bus company, "Lion Corp. d/b/a
Lion Tour Bus Company a/k/a Lion Tour & Travel, Inc. a/k/a Lion
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On November 10, 2003, a process server, Richard
Rubin, served the summons and complaint on the tour bus company,
at its headquarters in Levittown, Pennsylvania, by personal
service on a company vice-president.
Rubin's affidavits of
service identify him as a Pennsylvania resident.
Lion Corp. failed to respond to the summons and
complaint -- despite a notice of default that plaintiff's counsel
sent to Lion Corp. by certified mail.
Subsequently, plaintiff
moved for a default judgment, serving Lion Corp. with the motion
papers by mail.
Supreme Court granted the motion.
Lion Corp.
did not appear at an inquest and, on April 8, 2005, Supreme Court
granted plaintiff judgment in the amount of $450,000, plus
interest, costs and disbursements.1
Two years later, in May 2007, Lion Corp. broke its
silence and moved to dismiss the action under CPLR 3211 (a) (8)
and to vacate the default judgment pursuant to CPLR 5015 (a)(4).
In support of its motion, Lion Corp. cited CPLR 313, pointing out
that at the time of service Rubin was not a New York resident, he
was not a sheriff authorized to make service by Pennsylvania law,
and he was not an attorney, solicitor, barrister or equivalent.
As a result, Rubin was not authorized under CPLR 313 to effect
service in Pennsylvania and therefore, Lion Corp. argued, Supreme
Court had not acquired jurisdiction over it.
1
An amended default judgment, including additional names
under which Lion Corp. does business, was entered on October 13,
2006.
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No. 196
Supreme Court denied Lion Corp.'s motion, ruling that
the violation of CPLR 313 was a mere irregularity that could be
disregarded and not a jurisdictional defect.
The Appellate
Division reversed, holding that statutes defining the methodology
of service are jurisdictional and may not be disregarded (63 AD3d
814 [2d Dept 2009]).
That Court vacated the judgment, and
dismissed the complaint.
We granted leave to appeal, and now
reverse.
Plaintiff concedes that Rubin was not authorized to
make service, but challenges the jurisdictional implications of
this improper service.
She relies on CPLR 2001 and argues that
the irregularity in service can and should be disregarded under
that statute.
CPLR 2001 provides:
"At any stage of an action, including the
filing of a summons with notice, summons and
complaint or petition to commence an action,
the court may permit a mistake, omission,
defect or irregularity, including the failure
to purchase or acquire an index number or
other mistake in the filing process, to be
corrected, upon such terms as may be just,
or, if a substantial right of a party is not
prejudiced, the mistake, omission, defect or
irregularity shall be disregarded, provided
that any applicable fees shall be paid."
The statutory language clarifying that CPLR 2001
applies at the commencement of an action, including mistakes in
the filing process, was added in 2007.
The amendment was in
response to decisions of our Court that held an action (or
proceeding) should be dismissed as jurisdictionally defective if
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No. 196
the plaintiff (or petitioner) does not fulfill all the filing
requirements under CPLR 304 and 306-a, and the defendant (or
respondent) timely objects (see New York State Senate
Introducer's Memorandum in Support, at 3, citing Matter of Harris
v Niagara Falls Bd. of Education, 6 NY3d 155 [2006]; Matter of
Gershel v Porr, 89 NY2d 327 [1996]; Matter of Fry v Village of
Tarrytown, 80 NY2d 714 [1997]).
Those opinions suggested that
CPLR 2001 could not be applied to mistakes made at the
commencement of an action.
The question before us is whether a plaintiff's failure
to fulfill the service requirements of CPLR 313 because the
process server's residence renders him unauthorized to serve
process constitutes an irregularity that courts may disregard
under CPLR 2001 or a jurisdictional defect that courts may not
overlook.
We hold that the error may be disregarded under CPLR
2001.
It is clear from the Sponsor's Memorandum2 that the
purpose of the 2007 amendment to CPLR 2001 was to allow courts to
correct or disregard technical defects, occurring at the
commencement of an action, that do not prejudice the opposing
party (New York State Senate Introducer's Memorandum in Support,
at 3).
The Legislature considered the amendment to be necessary
"to fully foreclose dismissal of actions for technical, non2
The wording of the memorandum was drawn from a report of
the Chief Administrative Judge's Advisory Committee on Civil
Practice, which recommended the amendment.
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No. 196
prejudicial defects" (id.).
Although the payment of a filing fee and the filing of
initiatory papers are the acts that commence an action or special
proceeding, and service comes thereafter (CPLR 304 [a]; see
Gershel, 89 NY2d at 330), we perceive no reason why the
Legislature would wish to foreclose dismissal of actions for
technical, non-prejudicial defects in filing, but not service.
Moreover, CPLR 2001 by its own terms applies "[a]t any stage of
an action" (emphasis added).
We therefore reject the Appellate
Division's holding that a CPLR statute defining method of service
can in no circumstance be disregarded.
Our inquiry does not end here, however.
CPLR 2001 may
be used to cure only a "technical infirmity" (Miller v Board of
Assessors, 91 NY2d 82, 87 [1997]; see also e.g. Tagliaferri v
Weiler, 1 NY3d 605, 606 [2004]; Great Eastern Mall, Inc. v
Condon, 36 NY2d 544, 548 [1975]; Board of Trustees v Commissioner
of Education, 33 NY2d 601, 603 [1973]).
In deciding whether a
defect in service is merely technical, courts must be guided by
the principle of notice to the defendant -- notice that must be
"reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
an opportunity to present their objections" (Raschel v Rish, 69
NY2d 694, 696 [1986], quoting Mullane v Central Hanover Trust
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No. 196
Co., 339 US 306, 314 [1950]).3
Defendant's actual receipt of the summons and complaint
is not dispositive of the efficacy of service.
For example,
simply mailing the documents to defendant or e-mailing them to
defendant's web address would present more than a technical
infirmity, even if defendant actually receives the documents,
inasmuch as these methods in general introduce greater
possibility of failed delivery.
Likewise, delivery of a summons
and complaint to the wrong person (see Macchia v Russo, 67 NY2d
592 [1986]; see also Raschel) is a substantial defect.
On the
other hand, delivery of a summons and complaint by a process
server who is unauthorized to serve simply because of his place
of residence will not affect the likelihood that the summons and
complaint will reach defendant and inform him that he is being
sued.
We therefore conclude that a defect related to the
residence of a process server has no effect on the likelihood of
defendant's receipt of actual notice, and the court may choose to
correct or disregard it as a technical infirmity under CPLR 2001.
The Appellate Division therefore erred in concluding
that the defect in service in this case could not be disregarded
under CPLR 2001, and should have reached such other issues as
3
CPLR 313 is a notice statute, applicable only if there is
some independent basis for the exercise of personal jurisdiction
over the person to be served -- in the present case an alleged
tortious act within New York State (see CPLR 302 [a] [2]; Yarusso
v Arbotowicz, 41 NY2d 516, 518 [1977]).
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No. 196
defendant may have raised upon its appeal.
Accordingly the order of the Appellate Division should
be reversed, with costs, and the case remitted to the Appellate
Division, for further proceedings in accordance with this
opinion.
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Order reversed, with costs, and case remitted to the Appellate
Division, Second Department, for further proceedings in
accordance with the opinion herein. Opinion by Judge Pigott.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith and
Jones concur.
Decided November 30, 2010
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