Opinion
No. 1616 Index No. 816908/21 Case No. 2023-02010
02-08-2024
Rufus Williams, Plaintiff-Respondent, v. MTA Bus Company et al., Defendants-Appellants, Edouard Milord, Defendant.
Armienti, DeBellis & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for appellants. The Turkewitz Law Firm, New York (Eric Turkewitz of counsel), for respondent.
Armienti, DeBellis & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for appellants.
The Turkewitz Law Firm, New York (Eric Turkewitz of counsel), for respondent.
Before: Manzanet-Daniels, J.P., Kern, Friedman, O'Neill Levy, Michael, JJ.
Order, Supreme Court, Bronx County (Bianka Perez, J.), entered October 31, 2022, which granted plaintiff's motion for default judgment against defendant Edouard Milord, unanimously reversed, on the law, without costs, and plaintiff's motion denied.
Plaintiff's motion for a default judgment against Milord, a bus driver employed by defendant MTA Bus Company, was opposed by defendants MTA Bus Company, Metropolitan Transportation Authority, New York City Transit Authority, and Metropolitan and Bronx Surface Transit Operating Authority (collectively, MTA defendants). Plaintiff did not challenge the MTA defendants' standing and cannot raise the related issue of whether they are "aggrieved" parties with standing to appeal for the first time on appeal (see Seeking Valhalla Trust v Deane, 182 A.D.3d 457, 457-458 [1st Dept 2020], lv denied 36 N.Y.3d 904 [2020]).
On the merits, plaintiff failed to satisfy his prima facie burden of demonstrating proper service on Milord pursuant to CPLR 308(2), and the court therefore lacked jurisdiction to render its decision (Deutsche Bank Natl. Trust Co. v Ferguson, 156 A.D.3d 460, 461 [1st Dept 2017]). "Personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with" (Wells Fargo Bank, N.A. v Heaven, 176 A.D.3d 761, 762 [2d Dept 2019]). The mailing requirement of CPLR 308(2) is to be strictly construed (id. at 763, citing Citibank v Harris, 264 A.D.2d 377, 377 [2d Dept 1999]). Here, plaintiff's affidavit evidencing service at Milord's place of business fails to include any proof of mailing as required by CPLR 308(2), and no evidence of compliance with the mailing requirement is otherwise found in the record. Plaintiff therefore as a matter of law failed to comply with the mailing component of CPLR 308(2) and service thereunder was invalid (Deutsche Bank Natl. Trust Co. v Ferguson, 156 A.D.3d at 461).
This case is not factually analogous to this Court's decisions in San Lim v MTA Bus Co. (190 A.D.3d 493, 493 [1st Dept 2021], lv dismissed 37 N.Y.3d 1041 [2021] [affidavit of service clearly reflected compliance with 308(2)'s mailing requirement]) or Navarro v Singh (110 A.D.3d 497, 498 [1st Dept 2013] [the plaintiff offered additional evidence curing factually incorrect affidavit of service and showing mailing under 308(2)]).
Plaintiff's failure to comply with CPLR 308(2)'s mailing requirement was not a mere "technical infirmity" that may be overlooked by the court pursuant to CPLR 2001 (Estate of Perlman v Kelley, 175 A.D.3d 1249, 1250-1251 [2d Dept 2019]). "'In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant - notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections'" (id. at 1250-1251, quoting Ruffin v Lion Corp., 15 N.Y.3d 578, 582 [2010]). The court found that a late mailing under CPLR 308(2) was not a mere technical infirmity, as it increased the likelihood that the defendant did not receive proper notice of the legal proceeding (id. at 1251). We likewise hold that a plaintiff's complete failure to comply with CPLR 308(2)'s mailing requirement greatly increases the likelihood that a defendant will not receive the pleadings and have an opportunity to answer. Accordingly, plaintiff's failure to offer proof of mailing under CPLR 308(2) was a jurisdictional defect requiring denial of plaintiff's motion for a default judgment.
Further, plaintiff failed to show proper service pursuant to Vehicle and Traffic Law § 253, as he did not file the affidavit of compliance or otherwise offer proof of any of the required mailings under that section (see Braderman v Keitz, 13 A.D.3d 205, 205-206 [1st Dept 2004] [setting forth §253's various mailing and filing requirements and finding plaintiff's failure to satisfy same]).
We have considered the remaining contentions and find them unavailing.