Khaliyq Sellers v Success Counseling

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Khaliyq Sellers v Success Counseling 2014 NY Slip Op 31950(U) June 16, 2014 Sup Ct, New York County Docket Number: 251432/2013 Judge: Lucindo Suarez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] I FILED Jun 19 2q14 Bronx County Clerk I ! I S PREME C<j)URT OF THE STATE OF NEW YORK C UNTY OF ~RONX: I.A.S. PART 19 --- --------------1--------------------------------------------------X ! K ALIYQ S~LLERS, DECISION AND ORDER Plaintiff, Index No. 251432/2013 - against S CCESS cpUNSELING, 1015 Ogden Ave, Bronx, N.Y., Defendant. I I --- --------------1------------------------------------------------ --X I I PR 'SENT: Htjn. Lucindo Suarez i Upon ~efendant's notice of motion dated May 9, 2014 and the affirmation and exhibits I I I su mitted in s~pport thereof; plaintiffs affidavit in opposition dated May 19, 2014 and the exhibits I su mitted thertwith; and due deliberation; the court finds: ! Defend~nt moves pursuant to CPLR 3211 (a)(8) to dismiss plaintiffs complaint for failure to I ac uire person~l jurisdiction. According to the affidavit of service filed in this action, plaintiff pu ported to sJve the summons with notice upon defendant on February 25, 2014 solely by mailing a c py of the s~ons with notice by certified mail. Plainti!T himself performed the mailing. I Servicel must be made in a manner permitted by law. The only provision permitting service I I up n a corporabon by mailing alone is CPLR 312-a; however, such service requires mailing "by I fir t class mailJ postage prepaid, a copy of the summons and complaint, or summons and notice or ! not· ce of petiti~n and petition, together with two copies of a statement of service by mail and I ac nowledgernent [sic] ofreceipt in the form set forth in subdivision (d) of this section, with a I I ret rn envelop¢, postage prepaid, addressed to the sender," CPLR 312-a(a), and plaintiffs affidavit I i of ervice doesl not demonstrate compliance with such procedures. Service by certified mail does not comply w+ the statute. See City ofAlbany v. Wise, 298 A.D.2d 783, 750 N.Y.S.2d 653 (3d [* 2] ' FILED Jun 19 2Q14 Bronx County Clerk I ! I De 't 2002). Wurthermore, there is no proof that plaintiff fulfilled any other facet of the statute. See I Kl in v. Educahonal Loan Servicing, LLC, 71 A.D.3d 957, 897 N.Y.S.2d 220 (2d Dep't 2010). As I pl intiff cannot produce a signed acknowledgment of receipt, service was not effectuated. See St. Do inick Me~ Servs., P. C. v. Progressive Ins. Co., 31 Misc.3d 132(A), 2011 NY Slip Op I 50 09(U) (Ap~ Term 2d Dep't 2011). I I Only a~ affidavit of service which on its face depicts appropriate service constitutes prima I facie evidence lof proper service. See New Century Fin. Servs., Inc. v. Baines, 12 Misc.3d 1182(A), I 20 6 NY Slip pp 51382(U) (App Term 1st Dep't 2006). Accordingly, given the insufficiency of I I the method emf loyed by plaintiff, the complaint must be dismissed. See Matter of Bokhour v. New Yo k City Sch~ol Constr. Auth., 70 A.D.3d 684, 892 N.Y.S.2d 877 (2d Dep't 2010); Bennett v. I Ac sta, 68 A.~.3d 910, 890 N.Y.S.2d 330 (2d Dep't 2009). The fact that plaintiff has chosen to pr ceedpro seldoes not require a different result. See Brown v. Midrox Ins. Co., 108 A.D.3d 921, I 97 N.Y.S.2d J08 (3d Dep't 2013); Matter of Maddox v. State Univ. ofN.Y at Albany, 32 A.D.3d ! 59 , 819 N.Y.$.2d 605 (3d Dep't 2006), appeal dism, 8 N.Y.3d 978, 868 N.E.2d 230, 836 N.Y.S.2d 54 (2007). ! I Nor is~ different result required because defendant served a notice of appearance on or ! I ab ut April 11 j 2014. Service of a notice of appearance constitutes appearance in an action, see I i CP R 320(a); ~owever, such appearance does not confer personal jurisdiction where, as here, "an objection to jutisdiction under paragraph eight of subdivision (a) of rule 3211 is asserted by motion or n the answdr as provided in rule 3211," CPLR 320(b ). Thus, "the failure to interpose a I ! ! jur sdictional dbjection at the time an appearance is required under CPLR 320 is not controlling." I Al- ohan v. Kfuyoumjian, 93 A.D.2d 714, 716, 461N.Y.S.2d2, 5 (1st Dep't 1983), appeal dism, ! 59 N.Y.2d 9671 (1983). "Notice received by means other than those authorized by statute does not 2 [* 3] FILED Jun 19 2d14 Bronx County Clerk b ing a defen~ant within the jurisdiction of the court." Macchia v. Russo, 67 N.Y.2d 592, 595, 496 ! N.E.2d 680, ~82, 505 N.Y.S.2d 591, 593 (1986). Accordingly, prejudice and defendant's actual I n tice of the fction are immaterial. See 72A Realty Assocs. v. New York City Envtl. Control Bd., I 2 5 A.D.2d 2j84, 713 N.Y.S.2d 26 (1st Dep't 2000). Defe9dant furthermore argues that CPLR 306-b, requiring service of the summons with ! n tice within lone hundred twenty days after commencement of the action, mandates dismissal. I ! P rsuant to ttje statute, "[i]f service is not made upon a defendant within the time provided in this I i s ction, the c~urt, upon motion, shall dismiss the action without prejudice as to that defendant, or u on good ca~se shown or in the interest of justice, extend the time for service." CPLR 306-b ! ! ( mphasis ad~ed). I An action is commenced by the filing of the summons with notice. See CPLR 304(a). Filing means k!elivery to the County Clerk, see CPLR 304(c), and is effectuated when the papers are I received by t* County Clerk, see Grant v. Senkowski, 95 N.Y.2d 605, 744 N.E.2d 132, 721 I N.Y.S.2d 5971 (2001); Pelt v. City ofNew York Police Dep 't, 215 A.D.2d 208, 626 N.Y.S.2d 169 I ! (1st Dep't 19~5); Enos v. City o,f Rochester, 206 A.D.2d 159, 619 N.Y.S.2d 459 (4th Dep't 1994), ! appeal den, 1995 N.Y. App. Div. LEXIS 2069 (4th Dep't Feb. 3, 1995). In this action, the Bronx I C unty Clerklreceived the summons with notice on October 25, 2013, thus requiring service by I F bruary 24, tOl 4. See General Construction Law§§ 20, 25-a. Disregarding the impropriety of I pl intiff's chtjsen method of service, service on February 25, 2014 was therefore untimely. I In opposition, defendant submits an unfiled affidavit of service depicting service by mail on ! 0 tober 5, 2ob. Inasmuch as the action had not yet been commenced at that time, such service was a ullity, see ¢.g. Gershel v. Parr, 89 N.Y.2d 327, 675 N.E.2d 836, 653 N.Y.S.2d 82 (1996); Kelly I v. Delaney, 248 A.D.2d 360, 669 N.Y.S.2d 633 (2d Dep't 1998), appeal den, 92 N.Y.2d 803, 699 ! 3 [* 4] I FILED Jun 19 2q14 Bronx County Clerk I I .E.2d 434, 677 N.Y.S.2d 74 (1998), and in any event was not in conformity with any manner of I I s rvice perm{tted by the CPLR or other applicable laws. Plaintiff also invokes the "good cause" and " nterest of j~stice" language of CPLR 3 06-b to assert, without the notice of cross-motion required I I b CPLR 22 ~ 5, that he should be granted an extension of time in which to serve the defendant. I hile the cotrt may entertain arguments for relief not interposed pursuant to the CPLR where there no prejudi1e to the opposing party, the court is reluctant to find a lack of prejudice here in the I ! a sence of prpof of service of the opposition papers upon plaintiff. I Acco~dingly, it is I ORD~RED, that defendant's motion to dismiss the complaint for lack of personal I J risdiction ii granted; and it is further ORDtRED, that the Clerk of the Court shall enter judgment in favor of defendant I d smissing thf complaint; and it is further ! ORD$RED, that such dismissal is without prejudice. I This ~onstitutes the decision and order of the co Dated: June 16, 2014 4

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