Obrycki v Ryp

[*1] Obrycki v Ryp 2013 NY Slip Op 50678(U) Decided on May 1, 2013 Supreme Court, Sullivan County LaBuda, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2013
Supreme Court, Sullivan County

Marek Obrycki, Plaintiff,

against

Eva Natalia Ryp, MARIA SZWAJKA, and KAMIL ZAWADZKI, Defendants.



1743-2007



APPEARANCES:Gerald Orseck, Esq.

Orseck Law Offices PLLC

1924 State Route 52

P.O. Box 469

Liberty, New York 12754

Attorney for Plaintiff

Stephen M. Zeitlin, Esq.

50 Court Street—Suite 506

Brooklyn, NY 11201

Attorney for Defendant Kamil Zawadzki

Frank J. LaBuda, J.

By Order to Show Cause returnable April 15, 2013, Defendant, Kamil Zawadzki (hereinafter, "Zawadzki"), requests that this Court vacate the default judgment against him, dated December 15, 2008, pursuant to CPLR §§317, 3215(f), 5015(a)(1), (a)(3), and (a)(4), or in the interest of justice. Zawadzki also requests the Court dismiss the complaint against him pursuant to CPLR §3211(a)(7) or (a)(8). Plaintiff submitted an affirmation in opposition. Zawadzki submitted a reply.

Factual Background

On July 16, 2005, Plaintiff was injured in a jet ski accident on Mohican Lake in Sullivan County, New York. According to Plaintiff, the jet ski was owned by Maria Szwajka and was allegedly loaned to Defendant Kamil Zawadzki, who in turn consented to Natalia Ryp operating said jet ski. On June 11, 2007, Plaintiff commenced an action against Ryp, Szwajka and Zawadzki for injuries he sustained in the accident. On July 11, 2007, Preferred Mutual Insurance [*2]Company, Zawadzki's insurance company, denied coverage and sent notice of the denial to Zawadzki and Plaintiff's attorney. On July 17, 2011, Preferred Mutual sent Zawadzki a letter disclaiming coverage on the ground of late notice (by plaintiff) and non-coverage. Zawadzki failed to answer the complaint or appear in the action, thereby defaulting. Plaintiff thereafter obtained a default judgment against Zawadzki in the sum of $250,001.00 on December 15, 2008. The Judgment was entered in the Office of the Sullivan County Clerk on January 2, 2009. On January 9, 2009, Plaintiff served a copy of the default judgment with notice of entry on Zawadzki.

Now, four years after entry of the default judgment against Zawadzki, Zawadzki asks this Court to vacate said judgment on the grounds he was not properly served with the summons and notice in time to answer in a timely manner, that he has a meritorious defense, and that he relied on his attorney at the time, who has since been disbarred, to handle this matter for him. Zawadzki attributes his failure to timely answer or respond to improper service of process coupled with attorney misconduct. Zawadzki further requests that this Court dismiss the complaint against him pursuant to CPLR §3211.

Service of Process

In order to effectuate personal service on a natural person, personal service shall be made by any of the following methods: actual personal delivery to the person [CPLR §308(1)], actual personal delivery to a person of suitable age at the intended recipient's place of business or residence and mailing an additional copy addressed to the intended recipient [CPLR §308(2)], service pursuant to CPLR R.318 or DRL §232(a) [CPLR §308(3)], "where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business...." (commonly referred to as "nail and mail") [CPLR §308(4)], or in such manner as a court directs [[CPLR §308(5)]. For any service that has a mailing component, the mailing envelope must bear the statement "personal and confidential."

CPLR §317 states in pertinent part

A person served with a summons other than by personal delivery to him or to his agent...for service within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. Emphasis added.

CPLR §5015 states in pertinent part [*3]

(a) the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of...4. lack of jurisdiction to render the judgment or order....CPLR §5015(a)(4).

When serving pursuant to "nail and mail"it is necessary that the nailing and mailing be to the proper address. Feinstein v. Bergner, 48 NY2d 234 [1979]. The failure to nail and mail to the proper address results in a lack of personal jurisdiction, and any subsequent default judgment is a "nullity." Ariowtsch v. Johnson, 114 AD2d 184, 186 [3rd Dept. 1986]; see also, Harkness v. Reid, 23 AD3d 622 [2nd Dept. 2005]. "Absent proper service, a default judgment is a nullity, and once it is shown there was no service, the judgment must be unconditionally vacated." Shaw v. Shaw, 97 AD2d 403 [2nd Dept. 1983]. Moreover, "[t]he issue of whether a defendant has a meritorious defense is irrelevant to the question of whether a judgment should be vacated for lack of jurisdiction [citation omitted], defendant, having shown lack of personal jurisdiction, would normally be entitled to vacatur of the default pursuant to CPLR 50515(a)(4)." Ariowtsch v. Johnson, 114 AD2d at 186.

When a defendant is served pursuant to CPLR §308(2), (3), (4), or (5), it is presumed a court has personal and subject matter jurisdiction to enter a default. Iwu v. Estate of Harold Cummings, 2010 NY Slip Op 31725(U) [Sup. Ct. Queens Co. 2010]. "Accordingly, if the court did not acquire personal jurisdiction over the defendant because the suit was commenced by improper service, the defendant may obtain vacatur without satisfying the requirements of CPLR 317." Id., at 9. For example, a court lacks personal jurisdiction over a defendant when nail and mail (CPLR §308(4)) was made to the wrong apartment in the defendant's apartment building. Ariowtsch v. Johnson, supra. Service was held improper and therefore conferred no jurisdiction when a "summons and complaint were not affixed to the door that led to "a defendant's apartment." Lombay v. Padilla, 70 AD3d 1010, 1012 [2nd Dept. 2010]. Likewise, service pursuant to CPLR§308(4) to the wrong address, even one at which a defendant previously lived, confers no personal jurisdiction over the defendant. Community State Bank v. Haakonson, 94 AD2d 838 [3rd Dept. 1983]. Even if a defendant eventually receives notice of a lawsuit through mail or other means, "the nailing' [must] be done at the defendant's actual place of business, dwelling place or usual place of abode.'" Feinstein v. Bergner, 48 NY2d 234, 239, citations omitted. The fact that a defendant receives "actual notice of the suit does not cure the defect" of nailing at the wrong location, "since notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court." Id., at 241; see also, McDonald v. Ames Supply Co., 22 NY2d 111 [1968].

Motion to Dismiss—Lack of personal Jurisdiction

A party may move to dismiss the complaint on the ground the court lacks personal jurisdiction. CPLR R.3211(a)(8). Failure to strictly comply with the statutory requirements when serving process pursuant to CPLR §308(4) results in a lack of personal jurisdiction over a defendant or other named party. "Inasmuch as the defendant was not properly served with the summons and complaint...the judgment taken against him must be vacated and the complaint [*4]dismissed." Cortese v. Panzanella, 32 Misc 3d 507, 510 [Sup. Ct. Cortland Co. 2011].

CPLR §308(4) not only requires that the summons and complaint be affixed to the actual correct residence, place of business or usual place of abode, but also requires that the envelop used for mailing the summons and complaint "bear the legend personal and confidential'" for a court to have personal jurisdiction. Matropierro v. Bennett, 233 AD2d 483 [2nd Dept. 1996].

Discussion

In his motion to vacate the default judgment and for dismissal of the complaint, Zawadzki submitted a copy of the plaintiff's process server's affidavit of service as well as a copy of the envelop containing the additional copy of the summons and complaint in this action. It is irrefutable that the affidavit of service is for the wrong address—an address at which not only Zawadzki has never lived, but an address at which he could not have possibly ever lived, as it does not exist.

The affidavit of service indicates the process server attempted service on Zawadzki on three occasions at 2 May Lane, Glen Spey, NY, to wit: on June 13, 2007, at 8:30 am, on June 15, 2007, at 5:45 pm, and on June 16, 2007, at 4:30 pm. There is no address known as 2 May Lane, Glen Spey, New York. Moreover, even if the process server attempted service at 2 May Place, Glen Spey, New York, which does exist, that is also not Zawadzki's address and never has been. Therefore, accepting as true that the process server affixed the summons and complaint to the door at 2 May Place, Glen Spey, New York, an address which is not and has never been Zawadzki's actual place of business or dwelling, or usual place of abode, process was improper pursuant to CPLR §308(4); Ariowtsch v. Johnson, supra; Lombay v. Padilla, supra.

Contrary to Plaintiff's arguments, that jurisdictional defect was not cured by the fact that Zawadzki admittedly received notice of the lawsuit by mail. Feinstein v. Bergner, supra. First, the mailing envelop bore the same wrong address as did the affidavit of service—2 May Lane. Because Glen Spey is a very rural and small community, Zawadzki surmises that someone at his local post office, recognizing his name and knowing his proper address, directed the wrongly addressed envelop to his mailbox. While such delivery was very courteous, it did not cure the "nailing" defect, which is statutorily mandated to be at one of three locations. Id. Second, a copy of the envelope provided by Zawadzki shows it does not bear the legend, "personal and confidential" as is specifically required under CPLR §308. Therefore, not only was service improper with regard to the "nailing" requirement of the statute, but the failure to address the envelop to satisfy the confidentially requirement of the statute was a jurisdictional defect. See, Roth v. Syracuse Housing Authority, 2002 NY Slip Op 40550(U) at 2 [4th Dept. 2002].

Because Plaintiff failed to properly serve Zawadzki pursuant to CPLR §308(4), the default judgment must be vacated pursuant to CPLR §5015(a)(4) for lack of personal jurisdiction, and the complaint against Zawadzki must be dismissed pursuant to CPLR [*5]R.3211(a)(8). Cortese v. Panzanella, supra. As there is no time limitation for a motion to vacate a judgment pursuant to CPLR §5015(a)(4), the four year delay in bringing the within motion is is not relevant. Moreover, although there is no time limitation in which to bring a motion pursuant to CPLR §5015(a)(4) the Court notes that Zawadzki has sufficiently shown that while he was aware of the proceedings going on in the case, he was relying on his attorney at the time, Eugene E. Chmura, formerly at 1447 Broadway, Astoria, New York, to handle the matter for him. In light of the fact that Mr. Chmura was disbarred in September of 2012, that Zawadzki has provided numerous documents in support of his reliance on Mr. Chmura, and that it is not to be expected that Zawadzki, a layperson, would know whether Plaintiff effected proper service under CPLR §308(4), the Court is satisfied that Zawadzki did not attempt to evade service or otherwise avoid appearing in this matter. This is a case in which the Court never obtained personal jurisdiction over Zawadzki due to the failure of Plaintiff to properly serve process pursuant to CPLR §308(4).

Because the Court never had personal jurisdiction over Zawadzki, the default judgment dated December 15, 2008, is void as a matter of law and the complaint must be dismissed. It is therefore unnecessary for the Court to address any other issues raised by the parties in their submissions.

Based on the foregoing, it is

ORDERED that this Court's default judgment dated December 15, 2008, is vacated in its entirety pursuant to CPLR §5015(a)(4); and it is further

ORDERED that the within complaint against Defendant Kamil Zawadzki is dismissed in its entirety pursuant to CPLR R.3211(a)(8).

This shall constitute both the Decision and Order of the Court. The original of this Decision and Order and all other papers are delivered to the Sullivan County Clerk for entry. Counsel is not relieved from the applicable provisions of CPLR 2220 respecting filing, entry and Notice of Entry.

Dated:May, 2013

Monticello, New York

__________________________________________Hon. Frank J. LaBuda.Acting Justice Supreme Court

Papers considered:

Order to Show Cause, by Stephen M. Zeitlin, Esq., undated, returnable April 15, 2013

Affidavit in Support of OSC with Exhibits, by Kamil Zawadzki, dated February 26, 2013 [*6]

Attorney Affirmation in Support of OSC with Exhibits, by Stephen M. Zeitlin, Esq., dated February 26, 2013

Attorney Affirmation in Opposition to OSC with Exhibits, by Gerald Orseck, Esq., dated March 12, 2013

Reply Affidavit, by Kamil Zawadzki, dated March 20, 2013

reply Affirmation, by Stephen M. Zeitlin, Esq., dated March 20, 2013