| Segway of N.Y., Inc. v Udit Group, Inc. |
| 2014 NY Slip Op 05971 [120 AD3d 789] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Segway of New York, Inc., Doing Business as FormulaOne Extreme, Respondent, v Udit Group, Inc., Doing Business as RevolutionPowersports, et al., Appellants. |
Mordente Law Firm LLC, Fresh Meadows, N.Y. (Anthony R. Mordente of counsel),for appellants.
David E. Mollón, Great Neck, N.Y., for respondent.
In an action to recover on a promissory note and two personal guarantees on the note,commenced by motion for summary judgment in lieu of complaint pursuant to CPLR3213, the defendants appeal from an order of the Supreme Court, Nassau County (Jaeger,J.), entered October 26, 2012, which, after a hearing, denied their motion to vacate ajudgment of the same court dated January 13, 2012, which was entered upon their failureto oppose the plaintiff's motion for summary judgment in lieu of complaint in favor ofthe plaintiff and against them in the total sum of $204,292.96, and thereupon to dismissthe action for lack of personal jurisdiction.
Ordered that the order entered October 26, 2012, is reversed, on the law, with costs,and the defendants' motion to vacate the judgment and thereupon to dismiss the actionfor lack of personal jurisdiction is granted.
The defendant Udit Group, Inc., doing business as Revolution Powersports(hereinafter the corporate defendant), allegedly purchased motorcycles from the plaintiffand executed a promissory note in favor of the plaintiff, in which the corporate defendantagreed to repay the plaintiff the principal sum of $172,000. The individual defendantsallegedly executed guarantees on the note, pursuant to which they agreed to be personallyliable for the debt of the corporate defendant in the event that the corporate defendant didnot satisfy its obligation.
The plaintiff subsequently commenced this action pursuant to CPLR 3213 by motionfor summary judgment in lieu of complaint to recover on the note and the guarantees.Although the motion intake clerk initially rejected the notice of motion on the groundthat the address of the courthouse at which the motion was made returnable wasincorrect, the notice of motion was eventually accepted by the motion intake clerk. Thedefendants failed to appear on the return date or otherwise oppose the motion forsummary judgment, and the motion was granted upon the defendants' default. Ajudgment was subsequently entered in favor of the plaintiff and against the defendants inthe total sum of $204,292.96.
[*2] Thedefendants moved to vacate the judgment entered upon their failure to oppose the motionfor summary judgment. In an order dated June 8, 2011, the Supreme Court, inter alia,directed a hearing on the issue of whether service of process had been properly effectedupon each defendant. At the hearing, the plaintiff presented the testimony of a processserver, who testified as to how he had served each of the defendants. The defendantspresented the testimony of witnesses to support their contentions that service had notoccurred in the manner alleged by the plaintiff.
In an order entered October 26, 2012, the Supreme Court credited the testimony ofthe process server and denied the defendants' motion to vacate the judgment enteredupon their default. In denying the defendants' motion, the court, in effect, rejected thedefendants' contention that various defects in the summons and notice of motiondeprived the court of personal jurisdiction over the defendants.
In reviewing findings of fact made after a hearing to determine the validity of serviceof process, as a general matter, this Court will "not lightly disturb findings that are basedupon conflicting evidence and implicate the credibility of witnesses" (Washington Mut. Bank v Holt,113 AD3d 755, 756 [2014]). This Court nevertheless "possesses authority to reviewa determination rendered after a hearing that is as broad as that of the hearing court, andmay render the determination it finds warranted by the facts, taking into account that, in aclose case, the hearing court had the advantage of seeing the witnesses" (id. at756; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983]).
Here, the record supports the Supreme Court's determination to credit the processserver's testimony that he served copies of the summons and notice of motion upon thedefendants in a manner consistent with that set forth in his affidavits of service.Accordingly, we decline to disturb the court's factual determination in this regard (see generally Matter of Kelley vLynaugh, 112 AD3d 862, 865 [2013]; Macklowe v Trustees of Freeholders & Commonalty of Townof E. Hampton, 110 AD3d 964, 965 [2013]; cf. Washington Mut. Bank v Holt, 113 AD3d 755[2014]).
However, the Supreme Court erred in applying CPLR 2001 so as to disregard thefacial defects in the summons and notice of motion that were identified by thedefendants. That section "may be used to cure only a 'technical infirmity' " (Ruffin v Lion Corp., 15 NY3d578, 582 [2010], quoting Matter of Miller v Board of Assessors, 91 NY2d82, 87 [1997]). "In deciding whether a defect in service is merely technical, courts mustbe guided by the principle of notice to the defendant—notice that must bereasonably calculated, under all the circumstances, to apprise interested parties of thependency of the action and afford them an opportunity to present their objections"(Ruffin v Lion Corp., 15 NY3d at 582 [internal quotation marks omitted]).Where a defect creates a "greater possibility" of frustrating the core principles of noticeto the defendant, the defect must be regarded as substantial and courts may not disregardit under CPLR 2001 (id. at 583; see Brown v State of New York, 114 AD3d 632, 633[2014]).
Here, the notice of motion for summary judgment in lieu of complaint did notprovide timely notice of the motion to the defendant Andrew Udit, who was served bysubstituted service pursuant to CPLR 308 (2), inasmuch as the notice of motion set areturn date that was prior to the expiration of the 30-day period within which thatdefendant was statutorily entitled to appear (see CPLR 320 [a]; 3213).Furthermore, the copies of the notice of motion served upon the defendants with thesummons pursuant to CPLR 3213 contained an affirmative misstatement of the addressat which the motion could be defended (cf. CPLR 2214 [a]). We deem itappropriate to take judicial notice (see Consolidated Edison Co. of N.Y. v PublicServ. Commn. of State of N.Y., 47 NY2d 94, 110 [1979], revd on othergrounds 447 US 530 [1980], revd sub nom. on other grounds Central HudsonGas & Elec. Corp. v Public Serv. Comm'n of N.Y., 447 US 557 [1980];Appelbaum v Deutsch, 111 AD2d 21, 22 [1985], affd 66 NY2d 975[1985]; Dougherty v 425 Dev. Assoc., 93 AD2d 438, 447 [1983]; see alsoJerome Prince, Richardson on Evidence §§ 2-202, 2-203 [Farrell2008]) of the fact that the incorrect address given in the notice of motion pertained to anactual roadway located in Mineola, New York, and was not merely a misspelling of thecorrect address for the relevant courthouse. As such, the motion for summary judgmentin lieu of complaint was made returnable to a location in Mineola at which the SupremeCourt was not located, and at which the motion could not have been opposed. Thesedefects [*3]in the notice of motion, under the particularcircumstances of this case and in the context of an action commenced pursuant to CPLR3213, created a greater possibility of frustrating the core principles of notice to thedefendants (see Ruffin v Lion Corp., 15 NY3d at 583; Brown v State of NewYork, 114 AD3d at 633). Accordingly, these defects constitute "jurisdictionaldefect[s] that courts may not overlook" pursuant to CPLR 2001 (Ruffin v LionCorp., 15 NY3d at 582; see Matter of Cartier v County of Nassau, 281 AD2d477, 478 [2001]; Matter of Hawkins v McCall, 278 AD2d 638, 638 [2000];Matter of Lincoln Plaza Tenants Corp. v Dinkins, 171 AD2d 577, 577 [1991];Matter of Common Council of City of Gloversville v Town Bd. of Town ofJohnstown, 144 AD2d 90, 92 [1989]). Since the Supreme Court failed to acquirepersonal jurisdiction, "all subsequent proceedings are thereby rendered null and void"(Emigrant Mtge. Co., Inc. vWestervelt, 105 AD3d 896, 897 [2013] [internal quotation marks omitted]), andthe default judgment entered against the defendants is "a nullity" (Prudence v Wright, 94 AD3d1073, 1074 [2012]; seeKrisilas v Mount Sinai Hosp., 63 AD3d 887, 889 [2009]; Harkless v Reid, 23 AD3d622, 623 [2005]; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402[2003]).
The parties' remaining contentions either are without merit or have been renderedacademic in light of our determination.
Accordingly, the defendants' motion to vacate the judgment dated January 13, 2012,and thereupon to dismiss the action for lack of personal jurisdiction, should have beengranted (see CPLR 5015 [a] [4]). Dillon, J.P., Hall, Miller and Hinds-Radix, JJ.,concur.