Summary
denying defendant's summary judgment motion to dismiss the complaint on the grounds that plaintiff failed to effect proper service under VTL § 253 by not filing proof of receipt
Summary of this case from Peterkin v. Fedex Freight, Inc.Opinion
28471/2017E
10-11-2018
Orville N. HALL, Plaintiff, v. John P. BRAY, Defendant.
For Plaintiff: Law Offices of Rommel Daniel (Rommel Daniel, Esq.) For Defendant: Law Office of Dennis C. Bartling (John Boneta, Esq.)
For Plaintiff: Law Offices of Rommel Daniel (Rommel Daniel, Esq.)
For Defendant: Law Office of Dennis C. Bartling (John Boneta, Esq.)
John R. Higgitt, J. In this action to recover damages for personal injuries plaintiff allegedly sustained in a motor vehicle accident, defendant seeks summary judgment dismissing the complaint on the ground that plaintiff failed to effect proper service of process on defendant. For the reasons that follow, defendant's motion is denied.
On September 8, 2017, plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in a December 28, 2014 motor vehicle accident. The two-car accident occurred on a Westchester County roadway, and involved a vehicle operated by plaintiff and a vehicle operated by defendant. According to the police accident report prepared after the accident, defendant's address was 1002 Old York Road, Branchburg, New Jersey. Plaintiff had until January 8, 2018 to serve defendant (see CPLR 306-b ; see also General Construction Law § 25-a ).
In an effort to effect service on defendant under Vehicle and Traffic Law § 253, plaintiff's agent delivered a copy of the summons and complaint to an employee of the New York State Secretary of State at the Secretary's New York City office on September 20, 2017. On or about that same day, plaintiff's agent sent a copy of the summons and complaint with notice that those documents had been delivered to the Secretary of State to defendant at the New Jersey address by certified mail, return receipt requested. The mailing was subsequently returned as "unclaimed."
On November 30, 2017, plaintiff filed an "affidavit of service" that was executed by plaintiff's process server. The process server stated that, on September 20, 2017, she delivered to a clerk at the Secretary of State's New York City office a copy of the summons and complaint. The process server also stated that she effected the certified mailing to defendant at the New Jersey address. Lastly, the process server stated that the certified mailing had been returned as unclaimed, and that she, in turn, mailed a copy of the summons and complaint to defendant at the New Jersey address by ordinary, first class mail.
Defendant filed an answer on January 2, 2018 that included an affirmative defense of lack of personal jurisdiction; defendant asserted that plaintiff failed properly to serve defendant with the process.
Defendant seeks summary judgment dismissing the complaint on the ground that plaintiff did not comply with the requirements for service under Vehicle and Traffic Law § 253 and, therefore, that the court lacks personal jurisdiction over him. Defendant argues that plaintiff did not file the "affidavit of compliance" and other documents required by Vehicle and Traffic Law § 253. Defendant also argues that, because proper service was not effected upon him and the court lacks personal jurisdiction over him, the action is now time-barred, the relevant statute of limitations having expired in December 2017.
Because this motion was made after defendant interposed his answer, the court treats the motion as one for summary judgment (see CPLR 3211[e], 3212[a] ).
To the extent that defendant contends that service under Vehicle and Traffic Law § 253 was not effected because it is not obvious that the postal service attempted to deliver the certified mailing to defendant's New Jersey address (aff. in support, at ¶ 11), that contention is without merit (see Shushereba v. Ames , 255 N.Y. 490, 493, 175 N.E. 187 [1931] ["After [process] has been intrusted to the mail, the plaintiff has no control over the manner of its delivery."] ).
In support of his motion, defendant submits, among other things, the police report, the November 30, 2017 "affidavit of service," and an affidavit. In his affidavit, defendant averred that he has continually resided at the New Jersey address for over 20 years, and that no process was delivered or mailed to him in connection with this action. In opposition, plaintiff concedes that an affidavit of compliance was not filed timely, but that one was ultimately filed on July 13, 2018 and that the untimely filing of an affidavit of compliance is not a jurisdictional defect. Plaintiff contends that his failure to file timely an affidavit of compliance is a mere irregularity that the court can overlook; the court should, according to plaintiff, deem the affidavit of compliance filed nunc pro tunc (to an unspecified date). Plaintiff highlights that he did file an "affidavit of service" on November 30, 2017. Plaintiff asserts that a law-office-failure-type excuse justifies his failure to file timely an affidavit of compliance. With his opposition, plaintiff submits a certified mail receipt, dated September 20, 2017, indicating that a certified mailing was sent to defendant at his New Jersey address, and a copy of an envelope addressed to defendant at his New Jersey address with a certified mail tag bearing the same certified mailing number as the one listed on the certified mail receipt. The envelope is stamped "Return to Sender Unclaimed Unable to Forward," and dated October 13, 2017. Also, plaintiff submits a certificate of mailing, dated October 18, 2017, evidencing that plaintiff's process server mailed a document (presumably the ordinary mailing) to defendant at his New Jersey address. Plaintiff provides a printout from a United States Postal Service website documenting the tracking of the September 20, 2017 certified mailing.
Plaintiff's counsel affirms that "[p]laintiff's process service company ordinarily files the affidavit of service with the clerk of the court or via the New York State Courts Electronic Filing [System]. However, [p]laintiff['s] process service company never filed an Affidavit of Service in this instant matter nor did [it] file an affidavit of [c]ompliance with the clerk of the court. Plaintiff learned that the process[-serving] company never filed the Affidavit of Service in this instant matter nor did [it] file an affidavit of [c]ompliance with the clerk of the court. Plaintiff learned that the process[-serving] company did [not] ... e-file the affidavit of service or affidavit of compliance when the [p]laintiff's counsel checked the [NYSCEF system] to see if the defendant had interposed an answer. Thereafter, on November 30, 2017 [p]laintiff filed the affidavit of service ... Subsequently, [p]laintiff filed an affidavit of compliance pursuant to VTL [§] 253" (aff. in opp. at ¶ 35).
As to the belatedly filed affidavit of compliance, it is among plaintiff's submissions. The affidavit, filed on July 13, 2018, was executed by one Jean Gaston. The affiant attests that the summons and complaint were delivered to the Secretary of State, and that the process and notice of such delivery were sent to defendant by certified mail. The affiant also attests that the certified mailing was unclaimed by defendant, and that the process was then posted to defendant by ordinary mail. With the affidavit of compliance, plaintiff filed the envelope bearing the certified mail tag and notation that the mailing was unclaimed, the September 20, 2017 certified mail receipt, and the October 18, 2017 certificate of mailing.
Under Vehicle and Traffic Law § 253, "a nonresident driving in New York ... is deemed equivalent to the appointment of the secretary of state for service of process with respect to any claim emanating from an accident or collision growing out of the use or operation of the vehicle in New York" (Siegel & Connors, New York Practice § 97, at 208 [6th ed] [internal quotation marks omitted] ). Vehicle and Traffic Law § 253(2) lays out the specifics for service. Subdivision 2 provides, in relevant part, that
"Service of [the] summons shall be made by mailing a copy thereof to the secretary of state at his [or her] office in the city of Albany, or by personally delivering a copy thereof to one of his [or her] regularly established offices ... and such service shall be sufficient service upon such non-resident provided that notice of such service and a copy of the summons and complaint are forthwith sent by or on behalf of the plaintiff to the defendant by certified mail or registered mail with return receipt requested. The plaintiff shall file with the clerk of the court in which the action is pending ... an affidavit of compliance herewith, a copy of the summons and complaint, and ... [where] the registered or certified letter was returned to the post office unclaimed, the original envelope bearing a notation by the postal authorities of such mailing and return, an affidavit by or on behalf of the plaintiff that the summons was posted again by ordinary mail and proof of mailing certificate of ordinary mail ... The foregoing papers shall be filed within thirty days after the return receipt or other official proof of delivery or the original envelope bearing a notation of refusal, as the case may be, is received by the plaintiff. Service of process
shall be complete when such papers are filed."
Vehicle and Traffic Law § 253 was amended in 1978 to allow for valid service where the certified or registered mailing is returned "unclaimed" (see L. 1978, ch. 368; see also Berlin v. Ogren , 72 A.D.2d 631, 421 N.Y.S.2d 153 [3d Dept. 1979] ).
In this action, based on the manner in which plaintiff employed Vehicle and Traffic Law § 253, he needed to do the following to comply with the letter of the statute: (1) deliver a copy of the summons and complaint to the Secretary of State's New York City office; (2) send to defendant by certified mail a copy of the summons and complaint with notice of service on the Secretary of State; (3) send to defendant by ordinary mail a copy of the summons and complaint; and (4) file with the clerk of the court an affidavit of compliance, the certified-mailing envelope bearing the "unclaimed" notation, an affidavit demonstrating that the process was posted to defendant by ordinary mail, and a certificate of mailing evidencing that plaintiff sent the process by ordinary mail. The filing requirements had to be satisfied within 30 days after the original envelope bearing the "unclaimed" notation was received by plaintiff.
The parties agree that the 30-day period began to run on or about October 17, 2017 (aff. in support, at ¶ 12; aff. in opposition, at ¶¶ 8, 25; reply at ¶ 4). The deadline for filing the affidavit-of-compliance-associated documents, therefore, was on or about November 16, 2017, a deadline plaintiff concededly did not meet.
Plaintiff performed all of the necessary service steps: plaintiff delivered a copy of the process to an agent of the Secretary of State at the Secretary's New York City office; plaintiff mailed by certified mail a copy of the process and notice of service on the Secretary to defendant at his New Jersey address; upon the return of the certified mailing as "unclaimed," plaintiff mailed the process by ordinary mail to defendant at his New Jersey address; and plaintiff filed an affidavit of compliance (that included an averment that the process was sent by ordinary mail) along with the envelope bearing the "unclaimed" notation and the certificate evidencing the follow-up mailing by ordinary mail. What plaintiff did not do is file the affidavit of compliance and accompanying documents within the time to do so. The question, therefore, is whether plaintiff's failure to make the affidavit-of-compliance-associated filings within the 30-day period is a defect that prevented the court from obtaining personal jurisdiction over defendant.
"It is well settled that a statute permitting service of process other than by personal service must be strictly complied with in order to confer jurisdiction [over the defendant] upon the court" ( Air Conditioning Training Corp. v. Pirrote , 270 A.D. 391, 393, 60 N.Y.S.2d 35 [1st Dept. 1946] ). Vehicle and Traffic Law § 253 is no exception ( Bingham v. Ryder Truck Rental , 110 A.D.2d 867, 488 N.Y.S.2d 424 [2d Dept. 1985] ). However, as observed by the Court in Air Conditioning Training Corp .,"[t]here is ... a difference between service and proof of service. One is a fact of which the other is evidence" ( 270 A.D. at 393, 60 N.Y.S.2d 35 ). Thus, the failure to file proof of service is a procedural irregularity—not a jurisdictional defect—and the court, employing CPLR 2004, may extend a plaintiff's time to file such proof ( Charleston v. Tezzi , 164 A.D.3d 758, 84 N.Y.S.3d 239 [2d Dept. 2018] ; Khan v. Hernandez , 122 A.D.3d 802, 996 N.Y.S.2d 667 [2d Dept. 2014] ; see Lancaster v. Kindor , 98 A.D.2d 300, 306, 471 N.Y.S.2d 573 [1st Dept. 1984] [delay in filing proof of service is mere procedural irregularity that may be corrected] ). The filing of the proof of service does have an important (but non-jurisdictional) consequence: it pertains to the time within which a defendant must answer or move against the complaint ( Lancaster v. Kindor , 98 A.D.2d at 306, 471 N.Y.S.2d 573 ).
Generally, the case law regarding the failure to file proof of service addresses situations where a plaintiff did not file proof of service after effecting service under CPLR 308(2) —deliver-and-mail—or 308(4)—affix-and-mail. Both of those service provisions require an "affidavit of service" to be filed by a plaintiff after the required service steps are taken. Service is deemed "complete" 10 days after the filing of an affidavit of service; a defendant's time to answer or move against the complaint runs from the completion of service (see CPLR 308[2], [4] ).
The affidavit of compliance called for by Vehicle and Traffic Law § 253 is the equivalent of the affidavit of service required under CPLR 308(2) and (4). The affidavit of compliance, like the affidavit of service, is evidence of service, not service itself (see generally Air Conditioning Training Corp. v. Pirrote , 270 A.D. at 393, 60 N.Y.S.2d 35 ). The name of the Vehicle and Traffic Law § 253 affidavit makes that point plain: the "affidavit of compliance" is designed to demonstrate that the plaintiff complied with the service steps laid out in the statute. Thus, plaintiff's failure to file timely the affidavit of compliance did not constitute a jurisdictional defect. Similarly, plaintiff's failure to file timely the certified-mailing envelope bearing the "unclaimed" notation and the certificate of mailing evidencing that plaintiff sent the process by ordinary mail did not constitute a jurisdictional defect (see Albrecht v. Gordon , 182 A.D.2d 1131, 583 N.Y.S.2d 99 [4th Dept. 1992] ; see also Michaud v. Lussier , 6 A.D.2d 746, 174 N.Y.S.2d 349 [3d Dept. 1958] [construing the predecessor statute to VTL § 253 ], affd 7 N.Y.2d 934, 197 N.Y.S.2d 737, 165 N.E.2d 579 [1960] ; Johnson v. Bunnell , 8 A.D.2d 832, 190 N.Y.S.2d 111 [2d Dept. 1959] [same] ).
Braderman v. Keitz , 13 A.D.3d 205, 787 N.Y.S.2d 256 [1st Dept. 2004] is distinguishable. There, the Appellate Division found that the plaintiff failed to effect proper service on the defendant under Vehicle and Traffic Law § 253 because, among other things, the plaintiff "failed to comply with the ... requirements of [the statute] by failing to file an affidavit showing posting by regular mail and proof of such mailing" ( 13 A.D.3d at 206, 787 N.Y.S.2d 256 ). Here, plaintiff did file both an affidavit demonstrating that the ordinary mailing was posted to defendant and a certificate of mailing; he simply filed them late. Moreover, the Braderman Court did not address the specific issue of whether a court can extend the time to file the affidavit-of-compliance-associated documents (see Global Reinsurance Corp. of Am. v. Century Indem. Co. , 30 N.Y.3d 508, 517, 69 N.Y.S.3d 207, 91 N.E.3d 1186 [2017] ["It is basic that principles of law are not established by what was said, but by what was decided, and what was said is not evidence of what was decided, unless it relates directly to the question presented for decision. Accordingly, the Court's holding comprises only those statements of law which address issues which were presented to the Court for determination"] [internal citations and quotation marks omitted] ).
Jean-Laurent v. Nicholas , 182 A.D.2d 805, 582 N.Y.S.2d 506 [2d Dept. 1992] is similarly distinguishable. In affirming the motion court's order denying the plaintiff's motion to dismiss the defendant's affirmative defense of lack of personal jurisdiction, the Second Department noted that the plaintiffs did not provide notice to the defendant that the summons and complaint had been served on the Secretary of State and that there was no evidence that the plaintiffs filed the certified-mail envelope bearing an "unclaimed" notation. Also, the Court stressed "that there is no proof in the record that [the plaintiffs] followed up the ... unsuccessful [certified] mailing with a second mailing by ordinary mail as required by Vehicle and Traffic Law § 253(2)" ( 182 A.D.2d at 805, 582 N.Y.S.2d 506 ). Here, as discussed above, plaintiff provided defendant with notice of service on the Secretary, filed the certified-mailing envelope (albeit belatedly), and effected the follow-up mailing by ordinary mail.
Thus, the court, under CPLR 2004, extends plaintiff's time to file the affidavit of compliance (that included an averment that the process was sent by ordinary mail), the certified-mailing envelope bearing the "unclaimed" notation, and the certificate of mailing of the ordinary mailing to July 13, 2018, the date on which plaintiff e-filed those documents. Service was therefore complete on that date, triggering defendant's answering time. Defendant served an answer on January 2, 2018 before his service time started to run. The court deems the January 2, 2018 answer interposed on July 13, 2018.
Accordingly, it is hereby ORDERED that defendant's motion to dismiss is denied; and it is further,
ORDERED that, on its own motion, the court extends plaintiff's time to file the affidavit of compliance (that included an averment that the process was sent by ordinary mail), the certified-mailing envelope bearing the "unclaimed" notation, and the certificate of mailing of the ordinary mailing to July 13, 2018; and it is further,
ORDERED that defendant's January 2, 2018 answer is deemed interposed on July 13, 2018.
This constitutes the decision and order of the court.