| Gray-Joseph v Shuhai Liu |
| 2011 NY Slip Op 09592 [90 AD3d 988] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Verla Gray-Joseph, Respondent, v Shuhai Liu et al.,Appellants. |
—[*1]
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Whelan, J.), dated April 21, 2011, which granted thatbranch of the plaintiff's motion which was for leave to enter a default judgment against thedefendant William Yip, upon that defendant's failure to appear or answer the complaint, deniedthat branch of their cross motion which was to dismiss the complaint insofar as asserted againstthat defendant for lack of personal jurisdiction, and directed a hearing to determine the validity ofservice of process upon the defendant Shuhai Liu to aid in the disposition of that branch of theplaintiff's motion which was for leave to enter a default judgment against that defendant, uponhis failure to appear or answer the complaint, and that branch of their cross motion which was todismiss the complaint insofar as asserted against that defendant for lack of personal jurisdiction.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asdirected a hearing to determine the validity of service of process upon the defendant Shuhai Liuis deemed an application for leave to appeal from that portion of the order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court properly directed a hearing to determine the validity of service of processupon the defendant Shuhai Liu to aid in the disposition of that branch of the plaintiff's motionwhich was for leave to enter a default judgment against Liu, upon his failure to appear or answerthe complaint, and that branch of the defendants' cross motion which was to dismiss thecomplaint insofar as asserted against Liu for lack of personal jurisdiction. CPLR 308 (2)authorizes service of process to be made by delivery to a person of suitable age and discretion atthe defendant's actual place of business, dwelling place, or usual place of abode, and by mailingprocess to the defendant at either his or her last known residence or actual place of business.Jurisdiction is not acquired pursuant to CPLR 308 (2) unless both the delivery and mailingrequirements have been strictly complied with (see Ludmer v Hasan, 33 AD3d 594 [2006]; McCray vPetrini, 212 AD2d 676 [1995]; Avakian v De Los Santos, 183 AD2d 687, 688[1992]). However, a minor error in the address to which a summons is mailed will not renderservice of process void where "it is virtually certain that the summons will arrive" at its intendeddestination (Brownell v Feingold, 82 AD2d 844, 844 [1981]; see [*2]Ludmer v Hasan, 33 AD3d 594 [2006]; Donohue v LaPierre, 99 AD2d 570 [1984]). Here, the affidavits of the plaintiff's process server submittedin support of the plaintiff's motion, and Liu's affidavits, submitted in opposition to the motionand in support of the defendants' cross motion, raised issues of fact as to whether the processserver delivered the summons and complaint to a person of suitable age and discretion at Liu'sdwelling place and whether the envelope in which the summons and complaint were mailed,despite the failure to specify the apartment number, was virtually certain to arrive at Liu's lastknown residence (see Ludmer vHasan, 33 AD3d 594 [2006]; Donohue v La Pierre, 99 AD2d 570 [1984];Brownell v Feingold, 82 AD2d 844 [1981]).
Furthermore, the Supreme Court properly granted that branch of the plaintiff's motion whichwas for leave to enter a default judgment against the defendant William Yip upon his failure toappear or answer the complaint, and properly denied that branch of the defendants' cross motionwhich was to dismiss the complaint insofar as asserted against Yip for lack of personaljurisdiction. The process server's affidavit constituted prima facie evidence of proper servicepursuant to CPLR 308 (4) (see City ofNew York v Miller, 72 AD3d 726, 727 [2010]; Argent Mtge. Co., LLC v Vlahos, 66 AD3d 721 [2009]; 425 E. 26th St. Owners Corp. vBeaton, 50 AD3d 845, 846 [2008]). The defendants failed to submit a personally sworndenial of service by Yip (see Sturino vNino Tripicchio & Son Landscaping, 65 AD3d 1327 [2009]; Olesniewicz v Khan, 8 AD3d 354,355 [2004]; Simonds v Grobman, 277 AD2d 369, 370 [2000]; Walkes v Benoit,257 AD2d 508 [1999]). Moreover, the affidavit of Liu and a letter from Tommy Youn, anonparty, were insufficient to rebut the plaintiff's showing (see Olesniewicz v Khan, 8AD3d at 355; Simonds v Grobman, 277 AD2d at 370). Mastro, A.P.J., Balkin, Chambersand Sgroi, JJ., concur.