Paddyfote v Nunnery-Mullen

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Paddyfote v Nunnery-Mullen 2018 NY Slip Op 34222(U) September 19, 2018 Supreme Court, Rockland County Docket Number: Index No. 035684/2017 Judge: Thomas E. Walsh II Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: ROCKLAND COUNTY CLERK 09/20/2018 03:34 PM NYSCEF DOC. NO. 43 INDEX NO. 035684/2017 RECEIVED NYSCEF: 09/20/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ----------- --------- -- ---- ------- -------------- -------- ---- ------ -x LORA M. PADDYFOTE, Plaintiff, DECISION AND ORDER -against- In dex 035684/20 17 Motion # 1 - MD Motion # 2 - MG Motion # 3 - MD DC - Y K D NUNNERY-MULLEN, Defendant(s). ------------------------------------ -------- ----------------------x THOMAS E. WALSH, II, J.S.C T he fo ll owin g papers, numbered 1 to?, were considered in connect ion with the Pla in tiff's Notice of Motion (M otion # 1) for an Order (a) granting Plaintiff summary judgment as to legal li ability and (b) for such and further relief as this Cou rt deems just and proper; and also conside red in connecti o n w it h the Defendant's Notice of Cross Moti on (Motion # 2) for an Ord er (a) pursuant to Civil Practice Law and Rules§ 3211(a) dismissing Pla int iff's comp la int aga inst Mullen in its entirety and (b) granting such other, further and different relief as this Court may deem just , prope r and equ ita ble; and also considered in connecti on with the Plain tiff's Notice of Motion (M otion # 3) for an Order (a) Civil Practice La w and Rules§ 308(5) to deem the Defend ant as served and (b) permitting Pla intiff to serve the Defendant, through he r attorney with service of process: PAPERS [* 1] NUMBERED Notice of Mot ion (Motion # 1)/Affirmatio n of Jeffrey M. Adams, Esq./ Exhi bits (A-C) 1 Affirmat ion of Sa rah Allison, Esq . in Opposition/ Exhibits ( A- E) 2 No t ice of Cross Motion (M ot ion # 2 )/Affirm at ion of Sa rah Alli son, Esq ./ Exh ibits (A -F) 3 Affirmation of Jeffrey M. Adams, Esq. in Op position (Mot ion # 2) 4 Rep ly Affirmat io n of Je ffrey M. Adams , P.C. (Motion # 1) 5 Notice of Moti on (Motion # 3)/Affirmation of Jeffrey M. Adams, Esq . 6 Affirmation of Sa rah Allison, Esq. in Opposition 7 1 of 5 FILED: ROCKLAND COUNTY CLERK 09/20/2018 03:34 PM NYSCEF DOC. NO. 43 INDEX NO. 035684/2017 RECEIVED NYSCEF: 09/20/2018 Upon the fo reg oing papers, the Court now ru les as follows: Briefly, th is act ion arises out of a motor vehicle acc id ent that occurred on Ju ly 2 1, 20 17 on 87 in which th e vehicle operated by Defendan t st ru ck the vehicle operated by Plaint iff in the rear. Plaintiff all eges persona l injur ies as a result of the accident. The action was commenced by Summons and Complaint filed on November 22, 2017. Pl ain tiff e-filed an Affidavit of non - serv ice indicating that on March 31, 2018 at 22 Vincenzo Court Monroe, New York 10950 th e process server attempte d to se rv e Defendant, but was inform ed by a male occupant of the residence that Defendant was an o ld tenant wh o had moved out months ago. A secon d Affidav it of non-serve w as e- filed indicat ing that on April 7, 20 18 at 9 Lex ington Hill Road , Unit 6 Harriman , New York 10926 the process server attempted to se rve Defendant, but was informed by a male occupant of the residence that Defendant was an old tenant wh o no longer lived there. Defendant joined issue by serv ice of an Answer on may 11, 2018 raising fa il ure to properly se rve the Defendant (persona l jurisdiction) as her first affirmative defense along with discovery demands. Discovery demands were filed by Plaintiff on June 8, 2018. Also filed on June 8 1 2018 was Plaintiff's Notice of Mot ion (Motion #l)seeking summ ary judgment on liabi lity . In opposition Defendant's raised the argument that the Defendant was never personally served. Along with the opposition Defendants filed a Notice of Cross Mot ion (Mot ion # 2) seek ing dismissal pursuant to Civil Practice Law and Rules § 321 l (a)(8) due to lack of personal jurisdictio n. Pla intiff opposed Defendan t 's cross mot ion and fi led a Notice of Motio n ( Motion # 3) to deem the Defendant se rved pu rsuant to Civil Practice Law and Rules § 308 (5). Turn ing first to Defendant's Notice of Cross Motion pursuant to Civil Practice Law and Rules§ 3211(a)(8), the Defendant contends that she has never bee n served with the Summons and Complaint and that she was only informed of the instant action after being contacted by he r counsel, who were retai ned by her insu rance carri er. Acco rding to Defendant, prior to Defendant's counsel be ing retained the Defendant's insurance ca rrier became aware of the instant act ion based upon Pla intiff's request for un insured moto ris t arbit rat ion. The Defenda nt's counse l asserts that once the De fendant's insu rance ca r rier rece ived the afo re mentioned notice they reta ined counsel and counse l filed a responsive pl ea din g on De fend ant 's beha lf. Defendant furth er argues that they rai sed the affirmative defense of la ck of pe rsona l juri sdiction due to Plaintiff's failure to se rv e Defendant in the aforement ion ed Answer. Defendant asserts that she has never been served in any manner as subscribed by any section of Civil Practice Law and Rules § 308 as demon strated by the two (2) Affidavits of non-service f iled by the Defenda nt. Additiona lly , Defendant notes neither Affidavit of non-service indicates that the Summons and Complaint were affixed at either location , or any other location as requ ired pu rsu ant to Civil Practice Law and Rules§ 308(4). [* 2] 2 of 5 Defendant ave rs in he r Affi dav it that she FILED: ROCKLAND COUNTY CLERK 09/20/2018 03:34 PM NYSCEF DOC. NO. 43 INDEX NO. 035684/2017 RECEIVED NYSCEF: 09/20/2018 was unaware of th e instant action until she was contacted by her counse l retain ed by her insurance carrier in May 2018. In opposition Plaintiff's counsel states that the po lice incident report for the subject motor vehicle accid ent provide an address of 51 Jay Mar Ct., Monroe, New York 10950, which he presumes is the address provided by the Defendant to law enforcement who responded to the acc ident. Plaintiff further states that the Defendant did not produce a copy fo he r driver's license w ith the instant cross motion and as such he is presum ing that she has not changed her add re ss on her license . Add it iona lly, Defendant argues he has searched the Department of Motor Vehicles website and the Defendant never filed a MV-104 ind icating an address chang e. Pursuan t to Civil Practice Law and Rules§ 3211(a)(8) "[a] party may move for judgment dism issing one or more causes of act ion asserted against him on the ground that .. . the court has no jurisdiction of the person of the defendant." A natural person must be served in strict comp li ance w ith the statutory methods set forth in Civil Practice Law and Rules § 308. [ Washington Mutual Bank v. Murphy, 127 AD3d 1167 ( 2d Dept 2015 ) ; Estate of Waterman v. Jones, 46 AD3d 63, 65 (2d Dept 2007); Emigrant Mtge. Co., Inc. v. Westervelt, 105 AD3d 896 (2d Dept 2013)] . Civil Practice Law and Rules§ 308 sets fourth four different ways in which service of process on an individual can be effectuated so that the court will obtain jurisdiction over the person. " It is axiomatic that the failure to serve process in an action leaves the court without persona l jurisdiction over the defendant, and all subsequent proceeding are thereby rendered nu ll and vo id. " McMullen v. Arnone, 79 AD2d 496, 499 ( 2d Dept 198 1); Krisilas v. Mount Sinai Hosp., 63 AD3d 887,889 (2 d Dept 2009) ] . "A defendant's eventua l awareness of pend ing litigation will not affect the absence of jurisd iction over him or her where service of process is not effectuated in compliance with Civil Practice Law and Rules§ 308." [ Washington Mut. Bank v. Murphy, 127 AD3d at 1174; Bankers Tru st Co. Of Calv. Tsoukas, 303 AD2d 343, 344 (2d Dept 200 3); De Zega v. Donald F. Bruhn, M.D. P.C. , 67 NY2d 875, 877 (1986); Macchia v. Russo, 67 NY 2d 592, 595 (1986); Feinstein v. Bergner, 48 NY2d 234, 241 (1979) ] . I n the instant action the Defendant a ll eges that she was never served the Summons and Compla int and on ly became aware of the instant act ion upon notice from counse l hired by her insurance carrier after they received notice through Plaintiff's fil ing for un insured motorist arbitration. Plaintiff has e-filed two (2) separate Affidavits of non-service, (both demonstrat ing service after the one hundred twenty ( 120) day window to serve after commencement subscri bed by Civil Practice Law and Rules§ 306 - b), both at addresses that are different from the address wh ich the Pla intiff indicates is the Defendant's address in the po li ce accident report. In essence the Plaintiff has adm itted that he has fail ed to properly serve the Defend ant , as he never addresses the two affidavits of non - service that he e-filed earlier and only makes reference to a third address, which he presumes is the Defendant's correct add ress . Curiously, [* 3] 3 of 5 INDEX NO. 035684/2017 FILED: ROCKLAND COUNTY CLERK 09/20/2018 03:34 PM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 09/20/2018 Plaintiff fails to state whether he attempted to serve Defendant at the address he provides that was obtained from the po lice accident report or provide any affidavit of serv ice as to that address that would demonstrate compliance with the service requ iremen ts as set forth in Civil Practice Law and Rules§ 308 . Plaintiff has provided absolutely no evidence that the Defendant or he r attorneys were ever served in the instant action. Addit io nally, Plain t iff's counsel ignores the statemen t made by Defendant's counsel that the Defendant and her counsel only became aware of t he instant act ion afte r the Plaintiff f iled an un insured motorist arbitration form which was forwa rded to the insurance ca rrier. The fact that the insurance carrier eventually became aware of t he insta nt act ion , hired the Defendant counsel and the Defendant was ma de aware of t he instant action does not cure the jurisd ict io nal defect crea t ed by t he Plaint iff's failure to serve the Defendant pursuant to § 308. As t he Defendant was never prope r ly served in the ins tant act ion, this Court lacks personal jurisdict ion over the Defendant and the instant action must be dismissed. Based upon the Court's dismissal of the instant action due to a lack of pe rsonal j urisd icti on over the Defendant, Plaintiff's Motion for Summary Judgment (Motion #1) and Plaintiff's Motion t o Deem the Defendant Served pursuant to Civil Practice Law and Ru les § 308 ( 5) (M otio n # 3) are denied as moot. Accordingly, it is hereby ORDERED that De fe ndant's Cross Motion to Dismiss (Mo t ion #2) is granted in its entirety; and it is fu rth er ORDERED that Plaintiff's Motion for Summary Judgment (Motion # 1) is denied as moot ; and it is further ORDERED that Pla intiff's Motion to Deem the Defendant Served pursuant to Civil Practice Law and Rules§ 308(5) (Motion # 3) is denied as moot; and it is further ORDERED that the Clerk is di rected to ma rk the instant matter disposed. The foregoing constitutes this Court's Decision and Order on Motion s # 1, 2 and 3. Dated: New City, NK)York September-I-I-, 20 18 HON. THOMAS E. WALSH, II Justice of the Supreme Court [* 4] 4 of 5 FILED: ROCKLAND COUNTY CLERK 09/20/2018 03:34 PM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 09/20/2018 To: JEFFREY M. ADAMS, ESQ. ADAMS LAW FIRM, P.C. Attorney for Plaint iff ( via e- fil e) SARAH ALLISON, ESQ. GALLO VITUCCI KLAR, LLP Attorney for Defendant (via e-fil e) II [* 5] INDEX NO. 035684/2017 5 of 5 ,

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