|Ruffin v Lion Corp.|
|2008 NY Slip Op 52737(U) [38 Misc 3d 1205(A)]|
|Decided on January 25, 2008|
|Supreme Court, Kings County|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and will not be published in the printed Official Reports.|
Louise Ruffin, Plaintiff,
Lion Corp., d/b/a Lion Tour Bus Company, a/k/a Lion Tour & Travel, Inc., a/k/a Lion Trailways and "John Doe" (bus driver's name is presently unknown), Defendants.
The following papers number 1 to 5 read on this motion:
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-2
Opposing Affidavits (Affirmations)4
Reply Affidavits (Affirmations)
Other Papers Memoranda of Law3, 5
Upon the foregoing papers, defendants move for an order: (1) pursuant to CPLR 3211 (a) (8), dismissing the instant action on the ground that defendants were never properly served with process, and this court therefore never obtained jurisdiction over them; and (2) pursuant to CPLR 5015 (a) (4), relieving defendants from this court's judgment against them, entered on April 8, 2005, on the ground that this court lacked jurisdiction to render the judgment.
This is an action to recover damages for injuries sustained by plaintiff as the result of an accident that occurred on a tour bus operated by defendant Lion Corp. ("Lion"). On December 4, 2000, plaintiff was a passenger on the subject bus. During the voyage, the driver of the bus caused the bus to stop, which then caused plaintiff to be thrown into the dashboard. Plaintiff suffered injuries as a result of the accident.
Thereafter, on October 22, 2003, plaintiff commenced the instant action. Plaintiff alleges that the actions and omissions of the bus driver constitute negligence. [*2]Plaintiff further alleges that said negligence proximately caused her injuries. Lastly, plaintiff alleges that Lion is vicariously liable for the negligent acts and omissions of the bus driver.
The affidavit of service of process filed with the court states that Lion, a Pennsylvania corporation, was served with process in this action on November 10, 2003. The process server, Richard Rubin, avers in the affidavit that he is over 18 years of age and resident of Philadelphia, Pennsylvania. The affidavit also states that process was served on Richard Tisone, vice-president of Lion, at Lion's principal business office in Levittown, Pennsylvania.
Defendants did not interpose an answer. Plaintiff subsequently moved for and was awarded a default judgment against defendants by order of this court dated May 7, 2004. After an inquest held on December 16, 2004, plaintiff entered judgment against defendant on April 8, 2005. Defendants now move to dismiss the complaint and vacate the judgment on the ground that service was improper, and therefore, this court lacked jurisdiction over defendants. Defendants argue that since jurisdiction over them was never obtained, the complaint must be dismissed and the judgment must be vacated.
It is presently undisputed that, pursuant to CPLR 302, Lion is subject to the "longarm" jurisdiction of the courts of the State of New York.[FN1] However, defendants argue that Lion, a foreign corporate defendant, could only be properly served pursuant to CPLR 313. Defendants argue that CPLR 313 was not complied with.
CPLR 313 ("Service without the state giving personal jurisdiction") states as
"A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction."
It is undisputed that the subject process server was neither the equivalent of an attorney nor a person authorized to serve process in Pennsylvania. It is also undisputed that Lion was actually served with process. Defendants argue that since the process server was a resident of Pennsylvania but not authorized to serve process in Pennsylvania, no criterion of CPLR 313 was complied with.
Defendants' arguments lack merit, and their motion is therefore denied. In
American Home Assur. Co. v Morris Indus. Bldrs., Inc., (176 AD2d 541
, lv dismissed 79 NY2d 851 ), the Appellate Division of the
Supreme Court, noting that "CPLR 313 requires that service on a non-domiciliary be
made by a New York resident" (Id. at 544), stated as follows:
"Although [the process server] was not a New York resident, but rather a New Jersey resident, when he served the legal papers on the defendant in New Jersey, and there is [*3]no evidence before us indicating that he was legally authorized to serve legal papers in that State, as required by CPLR 313, we find that this defect, as to residency, is a mere irregularity, since it did not substantially prejudice defendant's rights, and therefore it shall be disregarded (CPLR 2001). Significantly, while CPLR 2103 states that a party is not eligible to serve legal papers, Appellate Courts in this State, including this Court, have consistently held that a party's service of legal papers is a mere irregularity and not a jurisdictional defect (Matter of Kandel v State Div. of Human Rights, 70 AD2d 817, 818 ; Matter of Schodack Concerned Citizens v Town Bd., 148 AD2d 130, 133 , lv denied 75 NY2d 701 ). The irregularity relative to the process server's residence, is considerably less significant, than service by a party." (Id. at 543-544 [internal quotations omitted).
The herein facts are analogous to those noted above. In the instant matter, the only
irregularity under CPLR 313 is that the process server, who was not authorized to serve
process in Pennsylvania, was a resident of Pennsylvania and not New York. Since there
is no dispute over whether defendants are subject to New York jurisdiction under CPLR
302, and given that Lion, through its principal, actually received process in this action on
November 10, 2003, this court follows the lead of American Home and renders the
technical defect "a mere irregularity and not a jurisdictional defect" (American
176 AD2d at 544). This court disregards the irregularity (CPLR 2001) and, as such, this court properly obtained jurisdiction over Lion on November 10, 2003, since service in Pennsylvania was made in the same manner as service is made within the state (see e.g. Sobhan v Ashland Chemical Co., 101 AD2d 858 ; Public Adm'r v Royal Bank of Canada, 19 NY2d 127 ).
Since an affidavit of a process server constitutes prima facie evidence of proper service (see e.g. Mauro v Mauro, 13 AD3d 345, 346 ; Hanover Ins. Co. v Cannon Express, 1 AD3d 358, 359 ; 96 Pierrepont v Mauro, 304 AD2d 631, 631 ), and since defendants have not submitted a sworn denial of service or swear to specific facts to rebut the statements in the process server's affidavit (see e.g. Puco v DeFeo, 296 AD2d 571 ; Davis v City of New York, 248 AD2d 427 ), service was properly made on and this court obtained jurisdiction over defendants on November 10, 2003.
Lastly, since there is no merit to defendants' contention that this court lacked jurisdiction over them, defendants have not demonstrated a reasonable excuse for their default and a meritorious defense as required by CPLR 5015 to vacate the default judgment in this action. The instant motion is thus denied (see e.g. Gillingham v Robinson, 45 AD3d 467 ; Brown v Suggs, 38 AD3d 329, 330 ).
Plaintiff is directed to serve a copy of this order with notice of entry on all parties within thirty days of the date of this order.
The foregoing constitutes the decision and order of this court.
E N T E R,
J. S . C.