| Johns v Van Brunt Motors, Inc. |
| 2011 NY Slip Op 07771 [89 AD3d 1188] |
| November 3, 2011 |
| Appellate Division, Third Department |
| Melissa J. Johns, Individually and as Executor of the Estates of Izzy BellN. Beam and Another, Deceased, et al., Respondents, v Van Brunt Motors, Inc., et al., Defendants,and Faurecia S.A., Appellant. |
—[*1] Douglas & London, P.C., New York City (Kenneth J. Gorman of counsel) and Ziff Law Firm,Elmira (James B. Reed of counsel), for respondents.
Kavanagh, J. Appeal from an order of the Supreme Court (O'Shea, J.), entered May 27, 2010 inChemung County, which denied a motion by defendant Faurecia S.A. for summary judgment dismissingthe complaint against it.
On November 19, 2008, plaintiffs filed a summons and complaint with the Chemung County Clerknaming, among others, defendant Faurecia S.A. (hereinafter defendant) as a defendant in this action.Subsequently, plaintiffs moved for additional time to effect service upon defendant, which is a foreigncorporation that is located in Nantere, Cedex, France (see CPLR 306-b). After SupremeCourt granted that motion, plaintiffs, on September 11, 2009, served defendant with a summons withnotice in France. After filing a notice of appearance and demanding a copy of the complaint, defendantfiled an answer which, among other things, claimed that it had not been properly served in the action.Thereafter, defendant moved for summary judgment dismissing the complaint alleging that, since it hadnot been properly served, Supreme Court lacked personal jurisdiction over it. Supreme Court deniedthe motion, [*2]prompting this appeal.
Defendant claims that it was not properly served because plaintiffs commenced this action by filinga summons and complaint with the County Clerk, but only served it with a copy of a summons withnotice. Defendant contends that plaintiffs were required to serve it with the pleadings that had beenoriginally filed with the County Clerk and that, on these facts, its service of a summons with notice wasjurisdictionally defective and did not comport with Supreme Court's order extending its time for serviceor with the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil andCommercial Matters (see 20 UST 361, TIAS No. 6638 [1969]). While Supreme Courtagreed that plaintiffs' use of a summons with notice was irregular, it found that it did not deprive thecourt of personal jurisdiction over defendant and that it was a defect that the court had the power todisregard. In that regard, CPLR 2001 provides: "At any stage of an action, including the filing of asummons with notice, summons and complaint or petition to commence an action, the court may permita mistake, omission, defect or irregularity, including the failure to purchase or acquire an index numberor other mistake in the filing process, to be corrected, upon such terms as may be just, or, if asubstantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall bedisregarded, provided that any applicable fees shall be paid."
Here, the summons and complaint used by plaintiffs to commence this action was timely filed and asummons with notice was served upon it within the time provided by Supreme Court in its order(see Siegel, NY Prac § 63, at 93 [4th ed]). Moreover, defendant does not claim that itsability to defend this action has been in any way compromised because it was served with a summonswith notice as opposed to a summons and complaint (see Schroeder v Good Samaritan Hosp., 80 AD3d 744, 746 [2011])and acknowledges receiving, after making an appropriate demand, a copy of the summons andcomplaint that had been filed by plaintiffs with the County Clerk.[FN1]As such, we are unable to conclude that Supreme Court abused its discretion in choosing to disregardthe irregularities that defendant claims were employed by plaintiffs in the service of this process (see Ruffin v Lion Corp., 15 NY3d 578[2010]; Matter of Baker v Baker, 80AD3d 849, 850 [2011]).[FN2]
Finally, defendant argues that Supreme Court erred in not dismissing the complaint against anotherdefendant, Chang Heung Precision Co., LTD, because it had not been properly served. However, in itsmotion for summary judgment, defendant did not request any form of relief on behalf of Chang Heungand Supreme Court made no findings in that regard as to that entity. Therefore, defendant's argumentsin regard to Chang Heung are not properly before this Court on this appeal and need not be addressed.[*3]
Mercure, J.P., Rose, Malone Jr. and Garry, JJ., concur.Ordered that the order is affirmed, with costs.
Footnote 1: Defendant does complain that thecomplaint it received was in English, forcing it to bear the substantial cost of translating it into French.
Footnote 2: In this regard, defendant argues thatplaintiffs' counsel made various misrepresentations to Supreme Court when it sought an extension oftime to serve process and, in particular, claims that the summons with notice that was served upon itwas never filed by plaintiffs with the Chemung County Clerk.