Opinion
29463/2009.
Decided April 11, 2011.
Harley S. Fastman, Esq., Lake Success, New York, for the Plaintiff.
Law Office of Nancy L. Isserlis, by Nancy L. Isserlis and Francis M. Cerniglia, Esqs., New York, for the Defendant.
The plaintiff, in this negligence action, moves for a default judgment against the defendant. The plaintiff alleges severe and serious injuries from being involved in an automobile accident with a car driven by the defendant on November 3, 2006. The plaintiff filed the action on November 2, 2009, one day before the expiration of the statute of limitations. The defendant cross moves to dismiss the complaint.
At issue is a discussion of various attempts made on behalf of the plaintiff to locate the defendant and to accomplish service of process, even by substituted service. The plaintiff attaches an affidavit of the process server that chronicles his attempts to locate the defendant, even in California, using an address allegedly provided by the United States Postal Service ("USPS"). The plaintiff, believing that the defendant had moved to California and had filed a change of address form with the USPS, then served the Secretary of State of New York State as the authorized representative for an out-of-state motorist. See NY Vehicle and Traffic Law sections 253 and 254; see also the undersigned's decision in Medina v Lozcano, 29 Misc 3d 1202 (A), 2010 WL 3781283, 2010 NY Slip Op 51670(U) [Sup Ct Queens County 2010] ["[T]he service provisions of VTL section 253 are applicable under VTL section 254 to a resident who departs New York State subsequent to the accident."].
A close examination of the affidavit of Frank Sicilia, the process server, shows that no attempt was made to find the defendant's address with the Commissioner of the Department of Motor Vehicles ("DMV"). Under controlling law, the plaintiff's failure to search the records of the DMV renders the service void, no matter how extraordinary other attempts were made to find the defendant. On strikingly similar facts, see the decision in McCaslin v Peterson, 13 Misc 3d 1206 (A), 2005 WL 4714235, 2005 NY Slip Op 52315(U) [Sup Ct Chautauqua County] [Feroleto, J.], aff'd on opinion below, 23 AD3d 1028 [4th Dept. 2005], and cited with approval by the Appellate Division, Second Judicial Department, in Estate of Waterman, 46 AD3d 63, 66 [2nd Dept. 2007]. The starting point for verifying an address is the DMV, not the USPS. See, McCaslin v Peterson, 13 Misc 3d 1206 (A), supra.
The Court is thus constrained to deny the plaintiff's motion for a default judgment and to grant the cross motion by the defendant to dismiss the complaint for improper service. The complaint is thus dismissed.
The foregoing constitutes the decision, order, and opinion of the Court.