| Matter of Lowney v New York State Div. of Human Rights |
| 2009 NY Slip Op 09305 [68 AD3d 551] |
| December 15, 2009 |
| Appellate Division, First Department |
| In the Matter of Cynthia Lowney, Appellant, v New YorkState Division of Human Rights, Respondent, and New York State Department of Labor(Unemployment Insurance Appeal Board), Respondent. |
—[*1] McNamee, Lochner, Titus & Williams, P.C., Albany (Scott C. Paton of counsel), for NewYork State Department of Labor, respondent.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered October 10, 2007,which granted respondents' motion to dismiss the petition for lack of personal jurisdiction, andfound petitioner's motions for consolidation with an Albany County proceeding and a change ofvenue from Albany County to New York County to be moot, unanimously affirmed, withoutcosts.
Pursuant to CPLR 307 (2), personal service upon a state officer sued in an official capacityor upon a state agency, "which shall be required to obtain personal jurisdiction," must either beby delivery to the chief executive officer (here the Commissioner) or to a person or personsdesignated by such chief executive officer, or by certified mail. It is uncontested that service herewas not performed by certified mail. Service to a secretary, as occurred here, did not provide thecourt with personal jurisdiction over the agency or Commissioner, and required dismissal of theproceeding, as the Department of Labor was a necessary party (see Rego Park Nursing Homev State of N.Y., Dept. of Health/Bur. of Residential Health Care Facility Reimbursement,160 AD2d 923, 924 [1990], affd 77 NY2d 942 [1991]; Matter of Wittie v State of N.Y. Off. ofChildren & Family Servs., 55 AD3d 842, 843 [2008]). That the Commissionerultimately received actual notice of the proceeding does not provide jurisdiction to the court(see Macchia v Russo, 67 NY2d 592, 595 [1986]; Matter of Moogan v New York State Dept. of Health, 8 AD3d 68,69 [2004], lv denied 3 NY3d 612 [2004]). Nor has plaintiff provided any facts fromwhich it may be found that the agency acted wrongfully or negligently causing petitioner tochange her position to her detriment, to support her estoppel argument (see Berkowitz ByBerkowitz v New York City Bd. of Educ., 921 F Supp 963, 968 [ED NY 1996]; Benderv New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976]; Francis v State ofNew York, 155 Misc 2d 1006, 1012 [Ct Cl 1992]). At no time did petitioner seek to serveany properly authorized person, nor does petitioner or her process server aver that either of themwas told that [*2]the secretary to whom they gave the papers wasauthorized, as required by statute, to accept process commencing a proceeding.
Petitioner's consolidation and change of venue issues are, therefore, moot.Concur—Friedman, J.P., Sweeny, Freedman and Abdus-Salaam, JJ. [Prior CaseHistory: 2007 NY Slip Op 33237(U).]