| Ruffin v Lion Corp. |
| 2009 NY Slip Op 04883 [63 AD3d 814] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Louise Ruffin, Respondent, v Lion Corp., Doing Businessas Lion Tour Bus Company, et al., Appellants. |
—[*1] David S. Kritzer, Huntington, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Partnow, J.), dated January 25, 2008, which denied theirmotion pursuant to CPLR 5015 (a) (4) to vacate a default judgment dated April 8, 2005, asamended by order dated October 13, 2006, and pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint.
Ordered that the order is reversed, on the law, without cost or disbursements, and thedefendant's motion to vacate the default judgment dated April 8, 2005, as amended by orderdated October 13, 2006, and to dismiss the complaint is granted.
The plaintiff brought this action to recover damages for personal injuries she allegedlysustained in an automobile accident. The plaintiff does not contest that service of process wasnot properly made on the defendants pursuant to CPLR 313. Rather, the plaintiff submits that thedefect in service, that the process server was not authorized to serve process, was a mereirregularity that could be overlooked, and not a jurisdictional defect. The plaintiff cites toAmerican Home Assur. Co. v Morris Indus. Bldrs. (176 AD2d 541 [1991]) for thisproposition.
CPLR 313 directs the method of service on nonresidents served outside of the state. Pursuantto CPLR 313, a party subject to the jurisdiction of the courts under CPLR 302 (long armjurisdiction) may be served with process in the same manner as service is made within the stateby (1) a New York State resident who is authorized to serve within the state; or (2) any personauthorized to make service by the laws of the state in which service is to be made; or (3) a dulyqualified attorney, barrister, or equivalent in the state where service is to be made. UnderPennsylvania law, pursuant to rule 400, except in certain situations not applicable here, processmay be served only by the sheriff (see Pa Rules of Civ Pro rule 400).
In American Home Assur. Co. v Morris Indus. Bldrs. (176 AD2d 541 [1991]), theAppellate Division, First Department, held that service made by an individual not authorized toeffect service under CPLR 313 is a mere irregularity that may be overlooked (id. at 544).The First Department explained that appellate courts in this State have found that service of legalpapers by a party to an action is a mere [*2]irregularity and not ajurisdictional defect (citing Matter of Schodack Concerned Citizens v Town Bd. of Town ofSchodack, 148 AD2d 130 [1989]; Matter of Kandel v State Div. of Human Rights,70 AD2d 817 [1979]), and reasoned that the irregularity relative to the process server'sresidence is less significant than that of service by a party (id.). However, this Court hasconsistently held that service by a party is not a mere irregularity that can be overlooked (seeMiller v Bank of N.Y. [Del.], 226 AD2d 507, 508 [1996]; see also Matter of MRC Receivables Corp.v Taylor, 57 AD3d 1000 [2008]; Matter of Sloan v Graham, 10 AD3d 433, 434 [2004]; Matter of Sloan v Knapp, 10 AD3d434, 435 [2004], cert denied 543 US 1190 [2005]). Further, statutes defining themethodology of service may not be overlooked or ignored (see Miller v Bank of N.Y.[Del.]), 226 AD2d at 508). Since CPLR 313 defines a methodology of service, this statutecannot be ignored or overlooked.
"It is well settled that where service of process has been improperly effected, any resultingdefault judgment is a nullity. This is so even where the defendant had actual notice of thelawsuit, and no meritorious defense, for in such a case, the court never had personal jurisdictionover the defendant" (DeMartino v Rivera, 148 AD2d 568, 569 [1989]; see Matter ofH. v M., 47 AD3d 629, 630 [2008]; Steele v Hempstead Pub Taxi, 305 AD2d 401,402 [2003]).
Accordingly, since jurisdiction was never acquired over the defendants, the defendants'motion to vacate the default judgment, as amended, and to dismiss the complaint, should havebeen granted.
The plaintiff's contention regarding the doctrine of equitable estoppel as an alternativeground for affirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60NY2d 539 [1983]), is without merit. Skelos, J.P., Florio, Leventhal and Hall, JJ., concur.