Amari v Fabrice

[*1] Amari v Fabrice 2023 NY Slip Op 51014(U) Decided on September 20, 2023 Supreme Court, Kings County Silber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2023
Supreme Court, Kings County

Gabriela Angela Amari, Plaintiff,

against

Mathiew Fabrice, DIANA NANCY CAMILLE and PEEK TRANSPORT, LLC, Defendants.



Index No. 504418/2021

Debra Silber, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of plaintiff's motion to reargue the decision of this court dated April 21, 2023

Papers NYSCEF
Notice of Motion, Affirmation, and Exhibits Annexed 17-24
Affirmation in Opposition and Exhibits Annexed
Reply

Upon the foregoing cited papers, the decision/order on this motion is as follows:

Plaintiff moves, pursuant to CPLR §2221(a) and (d), to reargue this court's decision of April 21, 2023, which denied her CPLR §3215 motion (MS #2) for a default judgment order against defendants Mathiew Fabrice, Diana Nancy Camille and Peek Transport, LLC. No opposition has been filed to this motion, as none of the defendants have appeared.

In the instant motion, plaintiff's counsel argues that when the court denied the prior motion and stated that it was not timely made, because it was filed on December 27, 2022, the court mistakenly failed to take notice of the fact that plaintiff had first moved for a default judgment against the defendants on August 11, 2022, which was timely made. Plaintiff's counsel contends that the motion filed on December 27, 2022 was the second motion for a default judgment that plaintiff had filed, and that Justice Campanelli allegedly instructed the plaintiff to withdraw the first timely made motion, and to re-file the motion in the format that Justice Campanelli required. This court has no way of knowing what exactly transpired, but the withdrawal of a motion is something that is voluntarily done by the moving party, not by the court. While this court can envision a scenario where a judge might point out defects in motion papers, and the movant might thereafter withdraw their motion to correct the defects rather than risk having the motion denied, the court does not withdraw motions.

However, even if the court were to determine that plaintiff has shown good cause for filing motion sequence #2 late, the court clearly states in the prior order that the motion was also denied because the affidavit of service, for service made pursuant to VTL §253, was defective. Plaintiff's attorney does not adequately address this issue in the motion to reargue.

To effectuate service pursuant to VTL §253, (service of summons on non-residents) the [*2]summons must be served upon the New York Secretary of State, and an additional copy must be mailed to the defendant or defendants by certified or registered mail, return receipt requested, and thereafter an affidavit of service must be filed with the court, along with a copy of the summons and complaint, and the return receipt card signed by the defendant "or a person qualified to receive his certified or registered mail, in accordance with the rules and customs of the post-office." The statute next states that if acceptance was refused by the defendant or his agent, the plaintiff must provide "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 (first class) mail." The statute then provides that if the registered or certified letter was returned to the post office as unclaimed or undeliverable, the plaintiff must also provide "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 (mailed) again by ordinary (first class) mail along with proof of mailing certificate of ordinary mail" (a certificate of mailing). See Siegel's NY Practice, § 97 "The Non-Resident Motorist Statute," and Cunningham, Practice Commentary, McKinney's VTL §253.

After motion sequence #2 was denied by this court because the filed [Doc 2] affirmation of service of process pursuant to VTL §253 was defective, plaintiff's counsel moved to reargue. She apparently concluded that the defect was that they had neglected to include the return receipt postcards from the postal service as exhibits with the attorney's affirmation of service. Plaintiff's counsel's argument in support of this motion to reargue is based upon her claim that it was law office failure that resulted in the return receipt postcards not being attached to the original motion papers, that such failure should be forgiven, and that plaintiff's motion should be granted. Counsel also provides for the first time a receipt from the Secretary of State that indicates that their office was served and the fee was paid [Doc 20].

However, plaintiff's argument that the two return receipt postcards that she has now attached resolves the defect in service is incorrect. The prior order admittedly does not specify the reasons that the service of process was defective pursuant to VTL §253. It is unclear why plaintiff's counsel has concluded that the failure to annex the green postcards was the defect. This decision shall hopefully provide a roadmap for counsel's future endeavors. Nonetheless, a close reading of governing statutes is always a good idea.

VTL §253 only requires that the certified or registered mail return receipt postcards be attached if the envelope was accepted by the person to whom it was mailed. If the registered or certified letter was returned to the post office as unclaimed or refused, as the plaintiff states was the case with the three defendants in this case, an unsigned postcard is pointless. The statute requires that plaintiff file with the clerk of the court, "the original envelope bearing a notation by the postal authorities of such mailing and return" and "an affidavit by or on behalf of the plaintiff that the summons was posted again by ordinary (first class) mail" along with a certificate of mailing. Plaintiff totally failed to comply with the statute.

The first defect in the affirmation of service at Document 2 is that it does not comply with the statute for service on the NY Secretary of State. The second defect if that it is neither an affidavit (no notary) nor an affirmation (none of the requisite language from CPLR 2016, such as "states, under penalties of perjury, that he is an attorney admitted . . "). It doesn't say if it was mailed or delivered to the Secretary of State. It doesn't say where it was mailed or delivered. It doesn't say the $10 fee was paid for each defendant. It was electronically filed as Document #2 [*3]on September 3, 2021, but fails to say when the Secretary of State was served, or when the certified mail letters were sent. The statute requires the affidavit of service to be filed within 30 days. Whether there was compliance with this requirement cannot be determined as the date of the mailings is not stated.

The next defect is that plaintiff fails to annex copies of the envelopes from the post office that were returned to the plaintiff and marked unclaimed. Instead, plaintiff attaches three internet printouts labeled "USPS Tracking," which indicate that three letters that were mailed to "Orlando, FL 32822" with no name or address of the recipient, were marked "unclaimed/being returned to sender" by the postal service. A review of these notices reveal that they only contain tracking numbers with no indication of how, or to whom, the letters were mailed. An inspection of the two unsigned postcards that plaintiff now offers [Doc 20] (for the three defendants who were ostensibly served) tie two of the tracking notices to two of the postcards, to letters mailed to defendants Diana Nancy Camille and Peek Transport, LLC, but the court is unable to determine who the third notice applies to, as plaintiff has failed to annex the return receipt postcard for the certified or registered mail that was allegedly sent to defendant Mathiew Fabrice.

The court re-emphasizes that plaintiff was only to provide the postcards if the letters had been accepted by the recipient and signed. In this instance, plaintiff was supposed to file copies of the actual envelopes that were returned to her, bearing the intended recipients names and addresses, with an unclaimed marking from the postal service. There is no provision in the statute for internet tracking notices that have no name and no address, and they do not suffice.

Finally, in instances where the certified or registered letter is either refused or unclaimed, VTL §253 requires that, in addition to providing copies of the aforementioned envelopes bearing the unclaimed stamp from the USPS, plaintiff was required to file "an affidavit by or on behalf of the plaintiff that the summons was posted (mailed) again by ordinary mail" (first class) and obtain a stamped certificate of mailing from the post office. That is a form available at the post office, and it is required by the statute. Plaintiff failed to file an affidavit of mailing of the summons by ordinary mail for any of the three defendants, nor has plaintiff filed any certificates of such mailings.

Accordingly, the motion for leave to reargue is granted, and upon reargument, the court adheres to its original decision dated April 21, 2023. This action remains dismissed.

The foregoing constitutes the decision and order of the court.

Dated: September 20, 2023
E N T E R :

______________________
Hon. Debra Silber, J.S.C.