Opinion
Index No. 802362/2021E
09-19-2024
Karina M. Perez Blanco, JINETTE DIAZ-RIVAS, Plaintiff, v. Chernor Jalloh, "JOHN DOE", ANEWDY A. PEREZ BLANCO, CITTA CAR LLC, Defendants.
Counsel for plaintiff Karina M. Perez Blanco: Law Offices of Oleg Levit, Esq. Counsel for plaintiff Jinette Diaz-Rivas: Law Offices of Oleg Levit, Esq. Counsel for defendant Chernor Jalloh: Baker, McEvoy & Moskowits Counsel for defendants Anewdy A. Perez Blanco: Nancy L Isserlis, Esq. Counsel for defendants Citta Car LLC: Nancy L Isserlis, Esq.
Unpublished Opinion
Counsel for plaintiff Karina M. Perez Blanco: Law Offices of Oleg Levit, Esq.
Counsel for plaintiff Jinette Diaz-Rivas: Law Offices of Oleg Levit, Esq.
Counsel for defendant Chernor Jalloh: Baker, McEvoy & Moskowits
Counsel for defendants Anewdy A. Perez Blanco: Nancy L Isserlis, Esq.
Counsel for defendants Citta Car LLC: Nancy L Isserlis, Esq.
John A. Howard-Algarin, J.
HON. JOHN A HOWARD-ALGARIN, J.S.C.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion to dismiss plaintiff's complaint:
Papers NYSCEF Doc. No(s).
Notice of Motion, Affirmation in Support, Statement of Material Facts, Exhibits Thereto11-15
Affirmation(s) in Opposition 17, 19
Reply Affirmation 18
In this motor vehicle negligence action, defendants, Anewdy A. Perez Blanco ("Blanco") and Citta Car LLC ("Citta") (collectively, "Defendants"), seek an Order, pursuant to CPLR § 3215[c], dismissing the complaint as to Citta for failing to institute proceedings for a default judgment as to that party within one year after the default, and dismissing the complaint as to Blanco for failing to properly serve that party with the summons and complaint. Plaintiffs oppose asserting that dismissing the complaint against Citta would be contrary to the interests of justice, and that it properly served Blanco with the summons and complaint in accordance with CPLR § 308[2] (NYSCEF Doc No. 19). Alternatively, defendant, Chernor Jalloh ("Jalloh"), partially opposes the motion arguing that the Court should not dismiss his crossclaims against Blanco as a matter of judicial economy (NYSCEF Doc No. 17). For the reasons stated below, defendants' motion is granted.
Plaintiffs' cause of action arises from personal injuries allegedly sustained on May 17, 2018, when a vehicle owned by Citta and operated by Blanco, in which plaintiffs were passengers, came in contact with a vehicle owned and operated by either defendant Jalloh or "John Doe", while at or around the intersection of Boston Road and East 173rd Street in Bronx County, New York (NYSCEF Doc No. 13).
Pertinent here, the record before the court shows that plaintiffs served the summons and complaint on Citta on March 3, 2021 (NYSCEF Doc No. 14), giving Citta until April 2, 2021, either to interpose an Answer or otherwise respond to the pleading (see CPLR § 320[a]). It did neither, and, to date, plaintiffs have failed to move the court for a default judgment. The record also reflects service of process upon Blanco at 935 E 163rd Street, Apt 5BB, Bronx, New York (NYSCEF Doc Nos. 15, 20), by leaving the summons and complaint with "Karina Perez, sister, a person of suitable age and discretion" (Id.). Defendants now move to dismiss the complaint as to Citta for plaintiff's failure to move for default within one year of Citta's default, and to dismiss the complaint against Blanco for failing to properly serve him.
If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action (CPLR § 3215[c]).
Plaintiffs' argument that dismissing the complaint as to Citta "would unjustly penalize the plaintiff for a procedural oversight" is unavailing given the mandatory language of CPLR § 3215[c] (see Citimortgage, Inc. v Kimmerling, 220 A.D.3d 838, 839-40 [2nd Dept 2023]). Hence, the complaint as asserted against Citta must be dismissed (CPLR § 3215[c]).
Moreover, according to the affidavit of service1 upon Blanco (NYSCEF Doc Nos 15, 20), the pleadings were served upon Karina Perez, whom the process server identified as Blanco's "Sister" in the Affidavit. The Court also notes that these parties both share the same surname "Perez Blanco," as indicated in the caption. The process server further averred that he placed the pleading in the mail addressed to the location upon which he served the pleading upon Karina Perez, leading to the conclusion that Blanco also resides with Karina Perez. Critically, defendants contend that Karina Perez is one of the plaintiffs in this matter (Def Aff in Supp at ¶ 9), an assertion plaintiffs do not refute.
A plaintiff who shares a residence with a defendant to be served with process, is not "a person of suitable age and discretion within the meaning of CPLR § 308[2], to accept service of process on behalf of [that defendant]" (see Weidemann v Keith, 127 A.D.2d 831 [2nd Dept 1987]). Accordingly, the Court must also dismiss the complaint as asserted against Blanco because "the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void" (Krisilas v Mount Sinai Hosp., 63 A.D.3d 887, 889 [2nd Dept 2009]). Finally, as respects Jalloh's cross-claims against Blanco, Jalloh's arguments that Blanco had actual notice of the cross-claim is of no moment. It is axiomatic that "[a] cross-claim is a claim by one defendant party against another" (Siegel, NY Prac. § 227; CPLR § 3019[b]). Hence, in the absence of jurisdiction of the person of Blanco by this Court, the cross-claim must fail as being asserted against a non-party.
Accordingly, it is hereby:
ORDERED that defendants, Anewdy A. Perez Blanco and Citta Car LLC's, motion for an Order, pursuant to CPLR § 3215(c), dismissing plaintiffs' complaint as to Citta for failing to institute proceedings for a default judgment as to that party within one a year, is GRANTED; and it is further;
ORDERED that defendants, Anewdy A. Perez Blanco and Citta Car LLC's, motion for an Order dismissing plaintiffs' complaint as to Anewdy A. Perez Blanco for failing to properly serve process upon that party is GRANTED; and it is further;
ORDERED that defendants, Anewdy A. Perez Blanco and Citta Car LLC, shall serve a copy of this Order with Notice of Entry within thirty (30) days of entry of this Order.
The foregoing constitutes the Decision and Order of the Court.