| McConnell v Santana |
| 2011 NY Slip Op 06251 [87 AD3d 618] |
| August 16, 2011 |
| Appellate Division, Second Department |
| Geraldine Carr McConnell, Individually and as Administratrix ofthe Estate of Geremy McConnell, Respondent, v Hiram Santana et al., Appellants, et al.,Defendants. |
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Dadian & White, Mt. Kisco, N.Y. (Thomas Torto and Jason Levine of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death, etc., the defendants HiramSantana and New York City Transit Authority appeal, as limited by their brief, from so much ofan order of the Supreme Court, Richmond County (Giacobbe, J.), dated October 5, 2009, asdenied that branch of the defendants' motion which was, in effect, pursuant to CPLR 5015 (a) (4)to vacate so much of a judgment of the same court dated December 2, 2008, as, upon a juryverdict, was in favor of the plaintiff and against the defendant Hiram Santana, on the ground thatthe court lacked jurisdiction to render a judgment against the defendant Hiram Santana.
Ordered that the order is affirmed insofar as appealed from, with costs.
By summons and complaint dated May 23, 2002, the plaintiff commenced this action torecover damages, inter alia, for the wrongful death of her son who was killed when the rearwheel of a bus owned by the defendant New York City Transit Authority (hereinafter theNYCTA) and operated by the defendant Hiram Santana ran over him after he apparently fell off abicycle he was riding alongside the bus on Hylan Boulevard in Staten Island. An answer wasserved by attorney Wallace D. Gossett on behalf of the NYCTA and the Metropolitan TransitAuthority (hereinafter the MTA), but Santana failed to answer or move to dismiss the complaint.
Thereafter, the plaintiff moved pursuant to CPLR 3215 (a) for leave to enter a judgmentagainst Santana based upon his failure to appear or answer the complaint. The unopposed motionwas supported by an affidavit of service of a process server who swore that he served Santana onJune 12, 2002, by personally delivering the summons and complaint to Santana's mother, MarySantana, a person of suitable age and discretion, at Santana's residence, and by mailing a copy toSantana at the same address. In an order dated December 2, 2002, the Supreme Court granted themotion as unopposed and held further proceedings against Santana in abeyance pending a trial inthe action against the remaining defendants.
On February 11, 2003, the defendants moved pursuant to CPLR 2005 and 5015 (a) (1) and(4) to vacate Santana's default on the ground that the Supreme Court lacked personal jurisdictionover him and, in any event, that he had a reasonable excuse for his default and a potentiallymeritorious defense. In support of the motion, an associate of Wallace D. Gossett submitted anaffirmation stating that she was assigned the case, but because of law office failure, was not made[*2]aware of the motion for leave to enter a judgment againstSantana in time to oppose the motion; that, as the bus driver employed by the NYCTA, Santanawould be represented by counsel representing the NYCTA, but that Santana was never servedwith the summons and complaint and, therefore, there was no obligation to interpose an answeron Santana's behalf; and that Santana had a potentially meritorious jurisdictional defense.Santana submitted an affidavit averring that he was never personally served with the summonsand complaint, that he lived alone and there was no female at his home on June 12, 2002, andthat his mother's name was not Mary Santana. On May 27, 2003, a hearing to determine thevalidity of service of process was conducted. In an order dated June 13, 2003, the Supreme Courtsummarily granted the motion as follows: "Motion No. 002 to vacate a default is granted."Following a jury trial, judgment was entered in favor of the plaintiff and against the defendants,and the defendants moved, inter alia, in effect, pursuant to CPLR 5015 (a) (4) to vacate thejudgment insofar as asserted against Santana on the ground that the court lacked jurisdiction torender a judgment against him.
If, as the appellants contend, the Supreme Court had found after the hearing that Santana hadnot been properly served, it would have had no authority to take any action other than to dismissthe complaint insofar as asserted against him (see Ben-Amram v Hershowitz, 14 AD3d 638 [2005]; Perdomov Chau Shing Wong, 275 AD2d 357 [2000]; Community State Bank v Haakonson,94 AD2d 838 [1983]). However, the Supreme Court did not dismiss the complaint insofar asasserted against Santana. Therefore, in effect, the Supreme Court found that service was properlyeffected.
The parties' remaining contentions are without merit. Mastro, J.P., Florio, Belen andChambers, JJ., concur. [Prior Case History: 2009 NY Slip Op 33199(U).]