| Itshaik v Singh |
| 2018 NY Slip Op 06888 [165 AD3d 902] |
| October 17, 2018 |
| Appellate Division, Second Department |
[*1]
| Amit Itshaik, Appellant, v Thomas Dhinsa Singh,Respondent, et al., Defendant. |
William Pager, Brooklyn, NY, for appellant.
Morris, Duffy, Alonso & Faley, New York, NY (Iryna S. Krauchanka and Andrea M.Alonso of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Bernadette Bayne, J.), dated September 15, 2016. The ordergranted the motion of the defendant Thomas Dhinsa Singh to vacate a prior order of the samecourt dated July 11, 2016, granting the plaintiff's unopposed motion for leave to enter a judgmentupon his default in appearing or answering, and for leave to serve a late answer.
Ordered that the order dated September 15, 2016, is affirmed, with costs.
On November 5, 2015, the plaintiff allegedly was injured when he was struck by a motorvehicle near the intersection of Indiana Place and National Drive in Brooklyn. On December 2,2015, the plaintiff commenced this action to recover damages for personal injuries. The plaintiffalleged in the complaint that the vehicle that was involved in the accident was owned by thedefendant Thomas Dhinsa Singh (hereinafter the defendant). The complaint was accompanied byan affidavit from the plaintiff's process server, which stated that the defendant had been servedon December 31, 2015, by leaving a copy of the summons and complaint with "Tony Singh,Relative," a person of suitable age and discretion, at an apartment on West End Avenue inManhattan. The process server stated in the affidavit that she had mailed an additional copy ofthe summons and complaint to that address on January 5, 2016.
In June 2016, the plaintiff moved for leave to enter a default judgment. In an affidavitsubmitted in support of the motion, the plaintiff stated that the accident occurred in the street infront of his home in Brooklyn when he was struck by a vehicle owned by his "neighbor." Theplaintiff did not allege that the police were called to the scene, or that an accident report wasprepared. In an order dated July 11, 2016, the Supreme Court granted the plaintiff's unopposedmotion.
In August 2016, the defendant moved to vacate the order dated July 11, 2016, and for leaveto serve a late answer. In support of the motion, the defendant and his mother submittedaffidavits stating that they had moved from the apartment on West End Avenue, which wasowned by the defendant's mother, to National Drive in April 2015, and that the West End Avenueapartment had remained vacant since the time of their move. They further stated that they did nothave any male relatives named Tony Singh, or any relative who fit the description provided in theaffidavit [*2]of service. The defendant also stated that he hadoperated his vehicle on Indiana Place on the date of the alleged accident, but that there had beenno contact between his vehicle and the plaintiff, or any pedestrian or vehicle.
In an affirmation in opposition to the motion, the plaintiff's attorney stated that he hadobtained the defendant's address by obtaining an "Insurance Activity Expansion" report from theNew York State Department of Motor Vehicles (hereinafter the DMV) on November 9, 2015.The report showed that on the date of the report the subject vehicle was owned by the defendant,and the address listed for the defendant was the apartment on West End Avenue in Manhattan.The Supreme Court granted the defendant's motion, and the plaintiff appeals.
"When a defendant seeking to vacate a default judgment raises a jurisdictional objectionpursuant to CPLR 5015 (a) (4), the court is required to resolve the jurisdictional question beforedetermining whether it is appropriate to grant a discretionary vacatur of the default under CPLR5015 (a) (1)" (Canelas v Flores, 112AD3d 871, 871 [2013]; seeCommunity W. Bank, N.A. v Stephen, 127 AD3d 1008, 1009 [2015]; HSBC Bank USA, N.A. v Miller, 121AD3d 1044, 1045 [2014]). A defendant moving to vacate a judgment entered upon his or herdefault in appearing or answering the complaint on the ground of lack of personal jurisdiction "isnot required to demonstrate a reasonable excuse for the default and a potentially meritoriousdefense" (Prudence v Wright, 94AD3d 1073, 1073 [2012]; see Falvov Cerra, 127 AD3d 919, 920 [2015]). "[T]he failure to serve process in an action leavesthe court without personal jurisdiction over the defendant, and all subsequent proceedings arethereby rendered null and void" (Krisilasv Mount Sinai Hosp., 63 AD3d 887, 889 [2009] [internal quotation marksomitted]).
Here, through his submissions, the defendant established that the Supreme Court did notacquire personal jurisdiction over him (see CPLR 5015 [a] [4]). The plaintiff contendsthat the defendant was estopped from challenging service upon him at the West End Avenueaddress pursuant to Vehicle and Traffic Law § 505 (5), which requires that everymotor vehicle licensee notify the Commissioner of the DMV of any change in residence within10 days of the change and make a notation of such change of residence on the license. However,under the circumstances of this case, where the defendant did not provide the West End Avenueaddress at the time of the accident, where the record does not contain a DMV driver's abstract forthe defendant, and where the plaintiff identified the motor vehicle allegedly involved in thisaccident as belonging to a neighbor, the plaintiff's contention is without merit (cf. Canelas vFlores, 112 AD3d at 871-872). Accordingly, we agree with the Supreme Court's granting ofthe defendant's motion to vacate the order dated July 11, 2016, and for leave to serve a lateanswer, based on lack of jurisdiction (see CPLR 5015 [a] [4]; Falvo v Cerra, 127AD3d at 920).
In light of our determination of the jurisdictional issue, we need not reach the parties'contentions regarding a discretionary vacatur pursuant to CPLR 5015 (a) (1). Moreover, theparties' contentions regarding CPLR 317, which were not raised before the Supreme Court, arenot properly before this Court. Austin, J.P., Roman, Sgroi and Connolly, JJ., concur.