| Horseman Antiques, Inc. v Huch |
| 2008 NY Slip Op 03591 [50 AD3d 963] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Horseman Antiques, Inc., Respondent, v Douglas L. Huchet al., Appellants. |
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In an action to recover for damage to property, the defendants appeal from an order of theSupreme Court, Kings County (Bayne, J.), dated June 21, 2007, which granted the plaintiff'smotion, in effect, to substitute the personal representative of the estate of Petre Ionita as a partydefendant, and to amend the caption and restore the case to the active calendar.
Ordered that the order is reversed, on the law, without costs or disbursements, and theplaintiff's motion is denied.
The plaintiff commenced this action to recover for damages to property allegedly caused bythe negligent operation of a motor vehicle owned by the defendants' decedent Petre Ionita andoperated by the defendant Douglas L. Huch. Shortly after the commencement of the action, PetreIonita died. A personal representative of the estate of Petre Ionita, Luliana Ionita Renevillis, wasappointed by a Probate Court of the State of Georgia, Dawson County. The plaintiff sought tosubstitute the nondomiciliary personal representative as a party defendant in place of thedecedent.
" 'A motion for substitution pursuant to CPLR 1021 is the method by which the courtacquires jurisdiction' over the deceased party's personal representative, and such a motion 'is nota mere technicality' " (Singer v Riskin,32 AD3d 839, 840 [2006] [citation omitted]). To obtain jurisdiction over the personalrepresentative, he or she must be served in accordance with CPLR article 3 (see GMACMtge. Corp. v Tuck, 299 AD2d 315 [2002]; Macomber v Cipollina, 226 AD2d 435[1996]). In the instant case, the only attempt at service upon the personal representative was bymail. The attempted service did not satisfy the requirements of CPLR 312-a (see Hilaire v Dennison, 24 AD3d1152 [2005]; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]). In theabsence of proper service, no personal jurisdiction was acquired over the personal representative,and therefore she could not be substituted as a party defendant. Lifson, J.P., Florio, Angiolilloand Chambers, JJ., concur.