| Bennett v Acosta |
| 2009 NY Slip Op 09414 [68 AD3d 910] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Delville Bennett, Appellant, v William Acosta,Respondent. |
—[*1]
In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiffappeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered October16, 2007, which denied his motion for leave to enter judgment on the issue of liability upon thedefendant's default in appearing or answering the complaint, and directed the dismissal of thecomplaint for lack of personal jurisdiction.
Ordered that the order is affirmed, without costs or disbursements.
The pro se plaintiff failed to establish that he complied with a legally-prescribed method ofservice authorized by the CPLR in attempting to acquire personal jurisdiction over the defendant.The plaintiff submitted his own sworn affidavit of service, which showed that his first attempt atservice was by regular mail. The plaintiff failed to establish that his first attempt to serve thedefendant satisfied the requirements of CPLR 312-a (see Horseman Antiques, Inc. vHuch, 50 AD3d 963, 964 [2008]; Dominguez v Stimpson Mfg. Corp., 207 AD2d375 [1994]).
The plaintiff submitted evidence that his second attempt at service was by certified mail,return receipt requested. This proof was insufficient to establish that his second attempt satisfiedthe requirements of CPLR 312-a since there was no proof that the summons and complaint weresent to the defendant, by first-class mail, together with, inter alia, two copies of a statement ofservice by mail and acknowledgment of receipt, and that the signed acknowledgment of receiptwas mailed or delivered to the plaintiff (see CPLR 312-a [a], [b]). Accordingly, theSupreme Court properly denied the plaintiff's motion for leave to enter a default judgment on theissue of liability and directed the dismissal of the complaint for lack of personal jurisdiction(see Dominguez v Stimpson Mfg. Corp., 207 AD2d at 375; Matter of Shenko Elec. vHartnett, 161 AD2d 1212, 1213 [1990]).
The plaintiff's remaining contentions are without merit. Fisher, J.P., Santucci, Dickerson,Chambers and Lott, JJ., concur.