| David v Total Identity Corp. |
| 2008 NY Slip Op 03749 [50 AD3d 1484] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| Robert David, Appellant, v Total Identity Corporation, Respondent,et al., Defendants. |
—[*1] Sonneborn, Spring & O'Sullivan, P.C., Syracuse (James L. Sonneborn of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), enteredFebruary 15, 2007. The order, among other things, granted that part of the motion of defendantTotal Identity Corporation to compel arbitration.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, that part of the motion of defendant Total Identity Corporation to dismiss thecomplaint is granted, the complaint against that defendant is dismissed, the cross motion isdismissed and plaintiff's motion is denied.
Memorandum: Plaintiff commenced this action seeking, inter alia, damages for the allegedbreach by defendant Total Identity Corporation (TIC) of two amended stock purchaseagreements. TIC, appearing in the action "solely to contest the authority and jurisdiction" ofSupreme Court, moved to dismiss the complaint against it for lack of personal jurisdictionpursuant to CPLR 3211 (a) (8) and for an order compelling arbitration and staying proceedingspursuant to CPLR 7503 (a). Plaintiff cross-moved for an order staying arbitration, pursuant toCPLR 7503 (b), and thereafter separately moved for an order authorizing alternative service ofprocess on TIC and defendants Matthew Dwyer and Richard Dwyer (Dwyers). The court grantedthat part of TIC's motion to compel arbitration and stayed the entire action. With respect to theissue of jurisdiction, the court noted only that its order "render[ed] the balance of plaintiff'smotion for an order facilitating service subject to the stay." We conclude that the court erred infailing to decide that part of the motion of TIC to dismiss the complaint against it based on lackof personal jurisdiction as well as plaintiff's motion for an order authorizing alternative service ofprocess.
Addressing first plaintiff's motion, we note that it is undisputed that plaintiff has notserved TIC or the Dwyers with the summons and complaint in this action. The expedient methodof service sought by plaintiff is permitted under CPLR 308 (5) and 311 (b) where the prescribedmethods of service are "impracticable." "[A] 'plaintiff seeking to effect expedient service mustmake some showing that the other prescribed methods of service could not be made' "(Markoff v South Nassau Community Hosp., 91 AD2d 1064, 1065 [1983], affd61 NY2d 283 [1984]) and, without such a [*2]showing,"[f]undamentally, a court is without power to direct expedient service" (Cooper-Fry vKolket, 245 AD2d 846, 847 [1997]; see Corbo v Stephens, 272 AD2d 502 [2000]).Here, although the record contains addresses for both TIC and Matthew Dwyer, an officer ofTIC, plaintiff never attempted service at those addresses. Rather, plaintiff attempted service at amailing address for TIC, which proved to be only a drop box, and at an address obtained bymeans of an Internet search, which proved to be that of Matthew Dwyer's parents. We thusconclude that plaintiff failed to meet his burden of showing that service on TIC and MatthewDwyer was impracticable (see Hitchcock v Pyramid Ctrs. of Empire State Co., 151 AD2d837, 838-839 [1989]). Plaintiff similarly failed to establish the impracticability of servingRichard Dwyer (see CPLR 308 [5]; Coffey v Russo, 231 AD2d 546 [1996];Salgado v Sanon, 183 AD2d 708, 709-710 [1992]). In any event, plaintiff's motion mustbe denied with respect to Richard Dwyer because plaintiff requested service by publication butgave no indication of where such publication would occur or how it was reasonably calculated togive notice to Richard Dwyer (see generally Dobkin v Chapman, 21 NY2d 490, 502-506[1968]). We thus conclude that, because plaintiff failed to show that service was impracticablewith respect to TIC, Matthew Dwyer, and Richard Dwyer, the court should have denied hismotion for alternative service of process on those defendants. We further conclude that the courtshould have granted that part of the motion of TIC to dismiss the complaint against it for lack ofpersonal jurisdiction. Any actual notice received by TIC and Matthew Dwyer, as TIC's officer, isinsufficient to subject TIC to personal jurisdiction when the statutory requirements for service ofprocess have not been met (see Countyof Nassau v Letosky, 34 AD3d 414, 415 [2006]; Hillary v Grace, 213 AD2d450, 452 [1995]).In light of our determination, we need not reach plaintiff's remaining contentions.Present—Hurlbutt, J.P., Lunn, Fahey, Peradotto and Pine, JJ.