| Pierce v Village of Horseheads Police Dept. |
| 2013 NY Slip Op 04866 [107 AD3d 1354] |
| June 27, 2013 |
| Appellate Division, Third Department |
| Monica Pierce, Respondent, v Village of Horseheads PoliceDepartment et al., Defendants, and County of Chemung et al.,Appellants. |
—[*1] Schlather, Stumbar, Parks & Salk, LLP, Ithaca (Jeffrey D. Walker of counsel), forMonica Pierce, respondent.
McCarthy, J. Appeal from an order of the Supreme Court (O'Shea, J.), enteredJanuary 13, 2012 in Chemung County, which, among other things, denied a motion bydefendants County of Chemung and Maggie Campanelli to dismiss the complaint againstthem.
Defendant Maggie Campanelli,[FN1]who was a caseworker for the Chemung County Department of Social Services,accompanied police officers who entered plaintiff's home, conducted a search,discovered marihuana and arrested plaintiff. After the criminal charge against plaintiffwas dismissed, she commenced this action against Campanelli, defendant Village ofHorseheads Police Department and four of its officers, alleging a violation of plaintiff's4th Amendment rights, pursuant to 42 USC § 1983, and her state constitutionalrights. A month later, plaintiff filed an amended summons and complaint thatadditionally named defendant County of Chemung. Campanelli and the County(hereinafter collectively referred to as defendants) moved to dismiss the complaintagainst them for lack of personal jurisdiction (see CPLR 3211 [a] [8]). Plaintiffopposed the motion, contending that defendants were properly [*2]served, but alternatively cross-moved for an extension oftime to effect service (see CPLR 306-b) and to permit service on Campanelli viapublication (see CPLR 315) or as otherwise directed by the court (seeCPLR 308 [5]). Supreme Court denied the motion to dismiss and, although indicatingthat an extension of time for service was warranted, deemed the attempted serviceadequate to confer jurisdiction, rendering the cross motion academic. Defendants appeal.
Plaintiff failed to serve process on defendants in accordance with theCPLR.[FN2]Because service of process is necessary to obtain personal jurisdiction over defendants,courts require strict compliance with the statutory methods of service. "[W]hen therequirements for service of process have not been met, it is irrelevant that [the] defendantmay have actually received the documents, because notice received by means other thanthose authorized by statute does not bring a defendant within the jurisdiction of thecourt" (Clarke v Smith, 98AD3d 756, 756 [2012] [internal quotation marks and citations omitted]; seeRaschel v Rish, 69 NY2d 694, 697 [1986]; Macchia v Russo, 67 NY2d 592,595 [1986]; U.S. Bank Natl.Assn. v Vanvliet, 24 AD3d 906, 907 [2005]). Plaintiff's original summons andcomplaint did not include the County as a defendant; the County was named for the firsttime in the amended summons and complaint. Therefore, plaintiff's service of the originalsummons and complaint upon the part-time County Attorney was ineffective as to theCounty, as it was not yet a named party (see CPLR 305 [a] [requiring filing andservice of supplemental summons on newly-joined party]).
Plaintiff also failed to properly effectuate service of the amended summons andcomplaint on the County. Personal service upon a county requires that the summons bepersonally delivered to "the chair or clerk of the board of supervisors, clerk, attorney ortreasurer" (CPLR 311 [a] [4]). Plaintiff's delivery of the amended documents to asecretary at the private law office where the County Attorney was also a partner wasineffective because the statute requires personal delivery to a listed representative of theCounty and does not provide for substituted service (see Lakeside Concrete Corp. vPine Hollow Bldg. Corp., 104 AD2d 551, 552 [1984], affd 65 NY2d 865[1985]; see also Strong v Bi-Lo Wholesalers, 265 AD2d 745, 745 [1999];compare CPLR 311 [a] with CPLR 308).
Service on the County Attorney was also ineffective as to Campanelli because it didnot comply with any of the methods listed in CPLR 308 for personal service on a naturalperson. Similarly ineffective was plaintiff's service of the amended summons andcomplaint upon a clerk at the Department of Social Services office at a time whenCampanelli had ceased working there; process was not served at her "actual place ofbusiness" as required by statute (CPLR 308 [2]; see Balendran v North Shore Med.Group, 251 AD2d 522, 523 [1998]; Maloney v Braeside Apts. Co., 193AD2d 1112, 1112 [1993]; cf. Feinstein v Bergner, 48 NY2d 234, 239-241[1979]; Wishni v Taylor, 75AD3d 747, 748-749 [2010]).
Contrary to plaintiff's arguments, CPLR 306-b does not obviate the need for properservice, but rather sets forth parameters for a court to grant an extension of time to effectservice (see CPLR 306-b; see also Leader v Maroney, Ponzini &Spencer, 97 NY2d 95, 104-105 [2001]). Additionally, the failure to effect servicehere cannot be corrected pursuant to CPLR 2001; that statute was enacted to permitcorrection of technical mistakes or infirmities, but was not intended [*3]to allow courts to create jurisdiction where it otherwisedoes not exist (see Matter ofMiller v Waters, 51 AD3d 113, 117-118 [2008]; cf. Goldenberg v WestchesterCounty Health Care Corp., 16 NY3d 323, 327-328 [2011]; compare Johns v Van BruntMotors, Inc., 89 AD3d 1188, 1189-1190 [2011]). Indeed, the Court of Appealshas stated that "delivery of a summons and complaint to the wrong person is a substantialdefect" that is not curable under CPLR 2001, rather than a technical error subject tobeing corrected or disregarded (Ruffin v Lion Corp., 15 NY3d 578, 583 [2010] [citationsomitted]). Hence, Supreme Court erred in declaring that the defective service waseffective to confer jurisdiction over defendants and permitting the action to proceedagainst them without requiring proper service.
In view of the foregoing, we must address plaintiff's cross motion for an extension oftime to effectuate proper service in order to confer personal jurisdiction overdefendants.[FN3]On a motion to dismiss based on lack of proper service, the court may, "upon good causeshown or in the interest of justice, extend the time for service" (CPLR 306-b). Whetherto grant such an extension rests within the trial court's discretion (see Leader vMaroney, Ponzini & Spencer, 97 NY2d at 101; Matter of Richards v Office of the N.Y. State Comptroller, 88AD3d 1049, 1050 [2011]). Plaintiff has not argued on appeal that she has showngood cause, rendering any argument on that basis abandoned. Upon addressing theinterest of justice basis, courts must balance the competing interests and may considerany relevant factors including "diligence, or lack thereof, . . . expiration ofthe [s]tatute of [l]imitations, the meritorious nature of the cause of action, the length ofdelay in service, the promptness of a plaintiff's request for the extension of time, andprejudice to defendant[s]" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at105-106).
Here, plaintiff's attempts at service, though in error, did not show a particular lack ofdiligence. Although the statute of limitations had expired by the time of defendants'motion and Supreme Court's decision, it had not expired when service was firstattempted (see Henneberry vBorstein, 91 AD3d 493, 496 [2012]). Despite being aware of potential causes ofaction, plaintiff waited to commence this action until approximately 2¾ years hadrun of the three-year statute of limitations. Plaintiff also did not seek an extension of timefor service until after defendants moved for dismissal.
Regarding prejudice, the County Attorney was aware of the action and has shown noprejudice due to the delay in service (see Wishni v Taylor, 75 AD3d at 749). Onthe other hand, although the County Attorney submitted an answer on Campanelli'sbehalf raising the affirmative defense of improper service, the record contains noinformation that she has personally been informed that she is named in thisaction.[FN4]In the cross motion, plaintiff sought, in the [*4]alternative, permission for service by publication due to herapparent inability to locate Campanelli. Under the circumstances, it is uncertain whetherCampanelli would suffer any prejudice if late service is permitted.
The most significant factor here is whether the action is meritorious. Plaintiff'smotion papers do not expand upon the allegations in the complaint and do notdemonstrate any merit to any of her causes of action concerning defendants. As to thecause of action pursuant to 42 USC § 1983, plaintiff fails to allege that Campanelliwas acting outside the scope of her employment as a child protective caseworker or thatit was objectively unreasonable for her to believe that her actions in accompanying policeinto a house where children might be subjected to inappropriate conduct was in violationof any protected rights; thus, she was entitled to immunity (see Moore v Melesky, 14AD3d 757, 760-761 [2005]; see also Colao v Mills, 39 AD3d 1048, 1050 [2007]). Thatcause of action was not properly alleged against the County either. A municipality cannotbe held liable under 42 USC § 1983 on the basis of respondeat superior, andplaintiff did not allege any policy, custom or knowing act by the County itself that led tothe alleged constitutional deprivation (see Ellison v City of New Rochelle, 62 AD3d 830,832-833 [2009]; Payne vCounty of Sullivan, 12 AD3d 807, 809 [2004]). Furthermore, because therecord does not indicate that plaintiff timely filed a notice of claim and the complaint wasnot filed within one year and 90 days of the date the action accrued (see GeneralMunicipal Law §§ 50-e, 50-i; County Law § 52), it does not appearthat plaintiff can prevail in her cause of action alleging a state constitutional tort againstthe County (see Grasso vSchenectady County Pub. Lib., 30 AD3d 814, 816 [2006]). Any allegationsregarding the state tort claim against Campanelli are too vague and mainly focus on thepolice defendants such that the cause of action against Campanelli cannot be deemedmeritorious.
Considering all of the factors, but especially given the lack of merit of both causes ofaction against defendants, as well as the lack of notice and potential prejudice toCampanelli, an extension of time to effect service is not warranted in the interest ofjustice (see Matter of Richards v Office of the N.Y. State Comptroller, 88 AD3dat 1050; Hine v Bambara,66 AD3d 1192, 1193 [2009]; Maiuri v Pearlstein, 53 AD3d 816, 817 [2008]; Matter of Anonymous v New YorkState Off. of Children & Family Servs., 53 AD3d 810, 812 [2008], lvdenied 11 NY3d 709 [2008]).[FN5]Accordingly, the cross motion should have been denied on the merits and defendants'motion should have been granted.
Lahtinen, J.P., Spain and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as denied the motion by defendantsCounty of Chemung and Maggie Campanelli to [*5]dismiss the complaint against them; motion granted; and, asso modified, affirmed.
Footnote 1: It appears that plaintiffmisidentified this defendant, and that her real name is Maggie Campanella.
Footnote 2: Supreme Court did notdirectly state whether service on either defendant was statutorily proper but, by declaringthat service of the amended summons and complaint was deemed effective to conferjurisdiction, the court implicitly found that service was not in accordance with therelevant statutes.
Footnote 3: Contrary to defendants'arguments, plaintiff can properly raise the merits of her cross motion on appeal. Plaintiffwas accorded the relief she requested, so she was not aggrieved and could notcross-appeal (see CPLR 5511). In any event, Supreme Court did not rely on themerits to deny her cross motion for an extension of time for service, but rather denied thecross motion as academic in light of the decision to accept the defective service assufficient.
Footnote 4: The answers submittedby the County Attorney also state that the named person is fictional, presumably becausethe original complaint named Campanelli as "CPS Caseworker 'Jane Doe' (known asCampanelli)" and the amended complaint named her as "CPS Caseworker MaggieCampanelli," although it appears that her real name is Maggie Campanella.
Footnote 5: We note that SupremeCourt's decision did not address the meritorious nature of the action. The court alsofound—contrary to our determination and the information in therecord—that both defendants had actual knowledge of the underlying claimsasserted.