| Matter of MRC Receivables Corp. v Taylor |
| 2008 NY Slip Op 10629 [57 AD3d 1000] |
| December 30, 2008 |
| Appellate Division, Second Department |
| In the Matter of MRC Receivables Corp.,Respondent, v Michael Taylor, Appellant. |
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In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, Michael Taylorappeals from an order of the Supreme Court, Putnam County (O'Rourke, J.), dated February 20,2008, which denied his cross motion to dismiss the proceeding for lack of personal jurisdiction,granted the petition, and confirmed the arbitration award.
Ordered that the order is reversed, on the law, with costs, the cross motion to dismiss isgranted, and the proceeding is dismissed.
Pursuant to CPLR 7502 (a), "[a] special proceeding shall be used to bring before a court thefirst application arising out of an arbitrable controversy." A special proceeding is commenced bythe filing of a petition (see CPLR 304; Matter of Travelers Indem. Co./Aetna Cas. &Sur. Co. v Roth, 258 AD2d 341 [1999]), which must be served upon the opposing party "inthe same manner as a summons in an action" (CPLR 403 [c]; see Matter of Star Boxing, Inc.v DaimlerChrysler Motors Corp., 17 AD3d 372 [2005]; Matter of Targee St. InternalMedicine Group P.C. Profit Sharing Trust v Nationwide Assoc., 300 AD2d 497, 498[2002]).
In the case at bar, it was undisputed that the "first application arising out of the arbitrablecontroversy" (CPLR 7502 [a]) was the instant special proceeding to confirm the arbitrationaward. It was also undisputed that the petitioner commenced the proceeding by attempting toeffect service of process upon the appellant at an incorrect address. Since the petitioner failed toproperly serve the petition, the Supreme Court lacked personal jurisdiction over the appellant,and the cross motion to dismiss the proceeding for lack of personal [*2]jurisdiction should have been granted (see Matter of StarBoxing, Inc. v DaimlerChrysler Motors Corp., 17 AD3d at 372; Matter of Hehl vGovernment Empls. Ins. Co., 203 AD2d 572 [1994]; INA/Aetna v American Mut. Ins.Cos., 115 AD2d 640 [1985]; Matter of Country Wide Ins. Co. v Polednak, 114 AD2d754 [1985]).
Contrary to the petitioner's argument, the actual notice of the proceeding received by theappellant from the United States Postal Office was insufficient to subject him to personaljurisdiction (see Raschel v Rish, 69 NY2d 694, 697 [1986]; David v Total IdentityCorp., 50 AD3d 1484, 1485-1486 [2008]; County of Nassau v Letosky, 34 AD3d414, 415 [2006]; Hillary v Grace, 213 AD2d 450, 452 [1995]). Nor is the erroneousaddress contained in the affidavit of service a minor "mistake, omission, defect or irregularity"correctable under CPLR 2001 (Krug v Offerman, Fallon, Mahoney & Cassano, 245AD2d 603, 604 [1997]), since it affects the appellant's substantial right to notice of theproceeding against him.
In light of our determination, we need not reach the appellant's remaining contention.Spolzino, J.P., Covello, Balkin and Belen, JJ., concur.