Khokhar v Beschastnikh

[*1] Khokhar v Beschastnikh 2015 NY Slip Op 51116(U) Decided on July 27, 2015 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2015
Supreme Court, Kings County

Saud A.h. Khokhar, Plaintiff(s),

against

Konstantin Beschastnikh, and IGOR VISTMAN, Defendant(s).



3341/15



Pro se Plaintiff

Saud A.H. Khokhar
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the order to show cause of plaintiff Saud A.H. Khokhar (hereinafter Khokhar), filed on July 6, 2015, under motion sequence number one, for (1) an order directing the manner of service of the summons and complaint pursuant to CPLR 308 (5); and (2) for an extension of time to serve the summons and complaint pursuant to CPLR 306-b upon the defendants Konstantin Beschastnikh (hereinafter Beschastnikh), and Igor Vistman (hereinafter Vistman).

MOTION PAPERS Plaintiff's motion papers consist of an order to show cause, an affidavit of emergency, an affidavit of the plaintiff in support and thirteen annexed exhibits labeled A through M. Exhibit A is the summons and complaint. Exhibits B is described as the police accident report. Exhibit C is described as correspondence from GEICO dated July 17, 2012. Exhibit D is described as a drivers abstract regarding Beschastnikh. Exhibit E is described as drivers abstract regarding Vistman. Exhibit F is described as a case information form with instructions to serve Vistman. Exhibit G is an affidavit of attempted service on Vistman. Exhibit H are documents described as e-mail correspondence between plaintiff and Elite Process Serving, Inc. Exhibit I is an affidavit of attempted service on Vistman. Exhibit J is an affidavit of attempted service on Beschastnikh. [*2]Exhibit K is document described as a United States Postal Service response to request for address and information needed for service of legal process for Vistman. Exhibit L is a document described as a drivers abstract for Beschastnikh. Exhibit M is a United States Postal Service response to request for address and information needed for service of legal process for Beschastnikh.

BACKGROUND

On March 17, 2015, Khokar commenced the instant action for damages for personal injuries by filing a summons and complaint with the Kings County Clerk's office. The complaint alleges that on or about July 10, 2012, Khokhar was operating his vehicle, a 2007 Toyota Camry on or near 2815 Avenue U, Brooklyn, New York. It further alleges that a vehicle, a 2000 Nissan Sentra (hereinafter the Sentra) operated by Beschastnikh and owned by Vistman struck the plaintiff in the rear causing him to sustain physical injury. The Sentra was registered in Illinois. Khokhar has not served either defendant. No defendant has appeared in the action.

LAW AND APPLICATION

Khokhar's Motion for an Order Permitting Alternative Service

Khokhar asserts that he has been unable to serve the defendants personally although he has attempted service multiple times. He seeks an extension of time to serve the defendants pursuant to CPLR 306-b and permission to serve the defendants by mailing the summons and complaint on Vistman's insurance company and by regular mail on each of the defendants' last known addresses pursuant to CPLR 308 (5).Service of the summons and complaint shall be made within one hundred twenty days (120) after the commencement of the action (CPLR 306—b). CPLR 308 (5) vests a court with the discretion to direct an alternative method of service of process when it has determined that the methods set forth in CPLR 308 (1), (2) and (4) are impracticable (see Home Fed. Sav. Bank v Versace, 252 AD2d 480 [2nd Dept 1998]). Although the impracticability standard is not capable of easy definition it does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308 (4) nor make an actual showing that service has been attempted pursuant to CPLR 308 (1), (2) and (4) (see In re Kaila B., 64 AD3d 647, 648, 883 NYS2d 132 [2nd Dept 2009]; citing, Home Federal Sav. Bank v Versace, 252 AD2d 480, 675 NYS2d 131 [2nd Dept 1998]).

Service on Vistman

Plaintiff asserts that Vistman is a non-resident. He bases this assumption on the police report that reflects the Sentra as registered in Illinois. In the instant matter, service of the summons and complaint on Vistman should be made via the method set forth in the New York Vehicle and Traffic Laws 253 (hereinafter VTL) for non-resident drivers. Specifically, VTL § 253 provides for service of the summons and complaint upon the secretary of state. The statute states:

. . . the use or operation in this state of a vehicle owned by a non-resident if so used or operated with his permission, express or implied, shall be deemed equivalent to an appointment by such non-resident of the secretary of state to be his true and lawful attorney upon whom may be served [*3]the summons in any action against him, growing out of any accident or collision in which. . . such vehicle may be involved while being used or operated in this state . . .with the permission, express or implied, of such non-resident owner; and such use or operation shall be deemed a signification of his agreement that any such summons against him which is so served shall be of the same legal force and validity as if served on him personally within the state and within the territorial jurisdiction of the court from which the summons issues, and that such appointment of the secretary of state shall be irrevocable and binding upon his executor or administrator (VTL 253[1]).

The statute further explains the specific method to serve the secretary of state. VTL 253 (2) provides that:

Service of such summons shall be made by mailing a copy thereof to the secretary of state at his office in the city of Albany, or by personally delivering a copy thereof to one of his regularly established offices, with a fee of ten dollars, and such service shall be sufficient service upon such non-resident provided that notice of such service and a copy of the summons and complaint are forthwith sent by or on behalf of the plaintiff to the defendant by certified mail or registered mail with return receipt requested. The plaintiff shall file with the clerk of the court in which the action is pending, or with the judge or justice of such court in case there be no clerk, an affidavit of compliance herewith, a copy of the summons and complaint, and either a return receipt purporting to be signed by the defendant or a person qualified to receive his certified mail or registered mail, in accordance with the rules and customs of the post-office department; or, if acceptance was refused by the defendant or his agent, the original envelope bearing a notation by the postal authorities that receipt was refused, and an affidavit by or on behalf of the plaintiff that notice of such mailing and refusal was forthwith sent to the defendant by ordinary mail; or, if the registered or certified letter was returned to the post office unclaimed, the original envelope bearing a notation by the postal authorities of such mailing and return, an affidavit by or on behalf of the plaintiff that the summons was posted again by ordinary mail and proof of mailing certificate of ordinary mail. . . .Service of process shall be complete when such papers are filed.

As per VTL 253, the plaintiff need only serve the secretary of state with the summons and complaint and mail a copy of the summons and complaint to the defendant's last known address. Of course, the plaintiff asserts that he has not been able to obtain Vistman's address and, therefore, logically it would be impossible for him to comply with the second step of VTL 253. While the plaintiff has attempted to locate Vistman he has used a private agency to compile a document labeled a drivers abstract. Plaintiff has not submitted proof that he attempted to obtain the defendants' addresses through the Department of Motor Vehicles (hereinafter DMV) of Illinois (see Spath v Zack, 36 AD3d 410 [1st Dept 2007]).VTL 505 (5) entitled change of address, states that it "shall be the duty of every licensee to notify the commissioner in writing of any change of residence of such licensee within ten days after such change occurs and to make a notation of such change of residence on such license in the place provided by the commissioner." A licensee is estopped from asserting that he was improperly served by mail, if the mail went to his old address and the licensee had failed to inform the Commissioner of any change of residence. Hence it was considered good service if the plaintiff served the defendant by mail at an old address which was the one still on file with the DMV (see Hill v Jones, 113 AD2d 874, [*4]493 NYS2d 603 [1985]). Illinois has a comparable statute which requires resident drivers to notify the Illinois Secretary of State's office within 10 days when their address or name changes (see Illinois Vehicle Code, Sec. 3-416, 6-116 and 6-511).

Accordingly, in the absence of a State of Illinois DMV search the plaintiff has not established that service is impracticable.

Service on Beschastnikh

In support of the application the plaintiff submits an affidavit of attempted service on Beschastnikh and the results of the private investigators driver abstract. The police report fails to include a complete address for Beschastnikh and, therefore, the plaintiff utilized a private investigation company to compile a drivers abstract. Again, the plaintiff did not request information from the New York DMV. As previously discussed, a driver is obligated to update their address with the DMV and are estopped from denying the address listed with the DMV. In the event that plaintiff obtains Beschastnikh's address from the DMV, service can be attempted via the methods outlined in CPLR 308. Accordingly, the plaintiff has failed to establish that service is impracticable in light of failing to request Beschastnikh's information from the New York DMV.

Extension of Time to Serve the Defendants

If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service (Wilson v City of New York, 118 AD3d 983, 984 [2nd Dept 2014]).

Good cause requires a threshold showing that the plaintiff made reasonably diligent efforts to make timely service (Bumpus v New York City Transit Authority, 66 AD3d 26 at 31 [2nd Dept 2009]). Good cause will not exist where a plaintiff fails to make any effort, or at least a reasonably diligent effort, at service (Id. at 32, citing Valentin v Zaltsman, 39 AD3d 852 [2nd Dept 2007]). By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (Id. at 32, 835 NYS2d 298, citing Greco v Renegades, Inc., 307 AD2d 711, 712 [4th Dept 2003]).

The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their determinations, may consider the presence or absence of diligence, along with other factors (Id. at 32, 761 NYS2d 426, citing Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105 [2001]). The interest of justice standard is broader than the good cause standard, as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant standard (Id. citing, Mead v Singleman, 24 AD3d 1142, 1144 [3rd Dept 2005]).

In the instant action, the plaintiff has established good cause for an extension of time to serve the defendants. He has attempted numerous times to serve the defendants during the 120 day period statutorily provided.

CONCLUSION

Plaintiff's motion pursuant to CPLR 308(5) for substituted service is denied without prejudice.

Plaintiff's motion pursuant to CPLR 306-b for an extension of time to serve the [*5]defendants is granted. Accordingly, the time to serve the defendants is extended until December 22, 2015. Plaintiff must serve and file proof of service with the Kings County Clerk's Office by December 22, 2015.

The foregoing constitutes the decision and order of this Court.

Enter: J.S.C.