Azim v Murphy

[*1] Azim v Murphy 2018 NY Slip Op 50976(U) Decided on June 27, 2018 Supreme Court, Queens County Weiss, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2018
Supreme Court, Queens County

Sharifa Azim, Plaintiff,

against

Daniel Murphy and S. HOFFMAN-MURPHY, Defendants.



710987/16
Allan B. Weiss, J.

The following numbered papers read on the motion (Seq.#3) by plaintiff for for an Order extending the plaintiff's time limits in CPLR 306-b to serve the defendant, S. HOFFMAN-MURPHY, (hereninafter the defendant) and for leave to serve the defendant by serving her insurance company pursuant CPLR 308(5); and motion (Seq.#2) by defendants for summary judgment dismissing the complaint pursuant to CPLR 3211(a)(8) & (11), 3211(e), CPLR 203, CPLR 214 and CPLR 306-b

PAPERS/E-FILE NUMBERED

Seq.#3 Notice of Motion-Affidavits-Exhibits 20 - 26

Answering Affidavits-Exhibits. 27

Replying Affidavits 28 - 33

Seq.#2 Notice of Motion-Affidavits-Exhibits 13 - 19

Answering Affidavits-Exhibits 35 - 56

Replying Affidavits

Upon the foregoing papers it is ordered that this motion is granted.

This action arises out of an automobile accident which occurred on June 17, 2014. The plaintiff timely commenced this action by filing on September 13, 2016. The plaintiff first moved (Mot. Seq.#1) on November 30, 2017, for the relief sought in the instant motion, however, the motion was marked off the calendar in the Central Motion Part for apparently violating the rules of CMP (see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 562 [2006]; Healthy Way Acupuncture, P.C. v 21st Century Indem. Ins. Co., 54 Misc 3d 142(A) [App Term 2017]). On December 1, 2017 defendants served their verified answer to the complaint containing, inter alia, [*2]a jurisdictional objection.

Pursuant to CPLR 306-b service of a summons and complaint must be made within 120 days after the commencement of the action, which the court, upon motion, may in its discretion and "upon good cause shown or in the interest of justice, extend the time for service" (CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 101 [2001]; Chan v Zoubarev, 157 AD3d 851 [2018]). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service Leader v Maroney, Ponzini & Spencer, supra at 105-106). 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 (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105) including 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 (see Bumpus v New York City Transit Auth.,, 66 AD3d 26, 32 [2009)]).

CPLR §308 (5) allows personal service upon a defendant " in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section" (see Matthews v Barrau, 150 AD3d 836, 839 [2017]). To meet the standard of impracticability does not require satisfying due diligence, or even showing that actual prior attempts to serve a party under each and every method provided in the statute have been made (see e.g. Home Federal Sav. Bank v Versace, 272 AD2d 576 [2000]; Kelly v Lewis, 220 AD2d 485, 485-486 [1995]).

Applying the forgoing principles, plaintiff has established "good cause" for granting an extension of the time to serve the defendant S. Hoffman-Murphy (see Greco v Renegades, Inc.,307 AD2d 711, 712 [2003]). The plaintiff submitted evidence to demonstrate that the defendant and her insurance company obtained notice of the plaintiff's claim within 4 months of the accident. Plaintiff submitted a copy of the letter of representation dated September 2, 2014 plaintiff sent to the defendant, S. Hoffman-murphy at 625 West Chester Street, Long Beach, NY 11561 by regular and certified mail regarding the subject accident. This is the address on the vehicle registration presented to the officer by the driver, defendant, DANIEL MURPHY and recorded on the police report. On September 10, 2014 GEICO provided plaintiff's attorney a letter acknowledging receipt of the letter of representation and containing a claim number.

In addition the plaintiff submitted three affidavits showing attempts to serve the summons and complaint upon the defendant, S. Hoffman-Murphy, at three different addresses two of which were prior to the expiration of the statute of limitations. Each attempt proved unsuccessful. The first attempt on October 13, 2016 was at 625 West Chester Street, Long Beach, NY 11561, The plaintiff also demonstarted that despite considerable efforts, he has been unable to ascertain the defendant's address.

The plaintiff's submissions also demonstrate that defendant S. Hoffman-Murphy's address is unknown, that GEICO is her automobile insurer and that service upon S. Hoffman-Murphy pursuant to CPLR 308 (1), (2) or (4) would be impracticable in this case (see Dobkin v Chapman, 21 NY2d 490 [1968]; Beacom v Mangone Homes, Inc., 233 AD2d 470 [1996], Esposito v Ruggerio, 193 AD2d 713 [1993]).

Accordingly, the plaintiff's motion Seq.#3 for an extension of time to serve the defendant, S. Hoffman-Murphy by serving her insurance company, GEICO is granted upon good cause.

The defendants' motion Seq.#2 insofar as it seeks dismissal of the complaint as against S. Hoffman-Murphy is denied.

Inasmuch as the defendants have already served an answer dated December 19, 2017 to the complaint, service of the summons and complaint is deemed timely served.

With respect to the defendants' motion to dismiss the complaint insofar as it is asserted against the defendant, Daniel Murphy (hereinafter Daniel) on the grounds of lack of personal jurisdiction, the defendants submitted Daniel's affidavit asserting that he was never served with papers in any manner and that he did not receive a copy in the mail.

In opposition, plaintiff submitted the affidavit of service with respect to Daniel and contends that Daniel was served pursuant to Vehicle and Traffic Law § 253, via the Secretary of State and submitted the affidavit of service together with the registered mail receipts.

VTL § 253 (2) sets forth the method for service of a summons and complaint on nonresidents. The purpose of the statute was to make sure that a non-resident defendant receives actual notice of an action commenced against him, unless the failure to receive notice is a result of the defendant's own actions. Since the statute provides for a method of service in derogation of the common law, only strict compliance with its requirements will confer jurisdiction (see Bingham v. Ryder Truck Rental, Inc., 110 AD2d 867, 869 [1985]).

VTL § 253(2) provides that a non-resident of New York may be served with process by serving the secretary of state and complying with the following additional steps:

[S]ervice shall be sufficient ... upon [a] 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, *** 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, *** ; 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 ... The foregoing papers shall be filed within thirty days after the return receipt or other official proof of delivery or the original envelope bearing a notation of refusal, as the case may be, is received by the plaintiff. Service of process shall be complete when such papers are filed. ***

Where the summons is mailed to a foreign country, other official proof of the delivery of the mail may be filed in case the post-office department is unable to obtain such a return receipt.

Although the plaintiff submitted the affidavit of service of the summons and complaint on the Secretary of State and proof of mailing by registered mail, the plaintiff failed to complete the process. Specifically, the plaintiff failed to file proof that he mailed the necessary notice that the Secretary of State had also been served, failed to file the return receipt signed by the defendant or other official proof of delivery of mail or the envelope bearing a notation that the [*3]mail was refused and an affidavit that notice of such mailing and refusal was sent by ordinary mail or if the registered or certified mail was unclaimed the original envelope bearing the postal authorities notation and an affidavit that the summons and complaint was mailed again by ordinary mail and proof of mailing certificate (see Jean-Laurent v. Nicholas, 182 AD2d 805[1992]). Thus, plaintiff failed to obtain personal jurisdiction over the defendant.

Accordingly, the branch of the defendants' motion to dismiss the complaint insofar as it is asserted against the defendant, Daniel Murphy is granted. The remainder of the action is severed.

Dated: June 27, 2018

J.S.C.