Opinion
2022–00141 Index No. 509909/20
12-13-2023
Pil Yong YOO, appellant, v. GOOD CLEAN FUN, defendant, Samuel K. Combs, respondent.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Lauren E. Bryant ], of counsel), for appellant. Silverman Acampora, LLP, Jericho, NY (Anthony C. Acampora and William Bergesch of counsel), for respondent.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Lauren E. Bryant ], of counsel), for appellant.
Silverman Acampora, LLP, Jericho, NY (Anthony C. Acampora and William Bergesch of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, PAUL WOOTEN, LAURENCE L. LOVE, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Miriam P. Sunshine, Ct. Atty. Ref.), dated January 4, 2022. The order, following a hearing to determine the validity of service of process, in effect, granted the motion of the defendant Samuel K. Combs pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.
ORDERED that the order is affirmed, with costs.
In June 2020, the plaintiff commenced this action to recover damages for personal injuries against, among others, the defendant Samuel K. Combs (hereinafter the defendant). Thereafter, the defendant moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. In an order dated January 4, 2022, made after a hearing to determine the validity of service of process, the Supreme Court, in effect, granted the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him. The plaintiff appeals.
"A court lacks personal jurisdiction over a defendant who is not properly served with process" ( Everbank v. Kelly, 203 A.D.3d 138, 142, 163 N.Y.S.3d 88 ; see Nationstar Mtge., LLC v. Esdelle, 186 A.D.3d 1384, 1386, 130 N.Y.S.3d 80 ). "[S]ervice of process upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308" ( Everbank v. Kelly, 203 A.D.3d at 143, 163 N.Y.S.3d 88 ; see Bank of Am., N.A. v. Genzler, 188 A.D.3d 634, 636, 133 N.Y.S.3d 645 ). "Service of process under CPLR 308(2) ... requires that the summons be delivered ... to a person of suitable age and discretion at the defendant's ‘actual place of business, dwelling place or usual place of abode,’ along with a mailing of the summons to the defendant's last known residence or actual place of business" ( Everbank v. Kelly, 203 A.D.3d at 143, 163 N.Y.S.3d 88 ). "At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence" ( Godwin v. Upper Room Baptist Church, 175 A.D.3d 1500, 1501, 109 N.Y.S.3d 383 ). "In reviewing a determination made after a hearing, this Court's authority is as broad as that of the hearing court, and this Court may render the determination it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses" ( Wells Fargo Bank, NA v. Burshstein, 172 A.D.3d 1436, 1437, 99 N.Y.S.3d 635 [internal quotation marks omitted]). Here, the plaintiff failed to demonstrate by a preponderance of the evidence that the defendant was properly served with the summons and complaint pursuant to CPLR 308(2). The hearing evidence established that the address at which the defendant was purportedly served pursuant to CPLR 308(2) was neither his actual dwelling place nor his usual place of abode, and that the defendant permanently resided in Belize as of the purported dates of service (see Webb v. Pearce, 114 A.D.3d 671, 672, 979 N.Y.S.2d 667 ; Bank One Natl. Assn. v. Osorio, 26 A.D.3d 452, 453, 811 N.Y.S.2d 416 ).
Contrary to the plaintiff's contention, the defendant's failure to update his address with the Department of Motor Vehicles, standing alone, did not estop him from contesting service (see Castillo–Florez v. Charlecius, 220 A.D.3d 1, 197 N.Y.S.3d 514 ).
Accordingly, the Supreme Court properly, in effect, granted the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.
DUFFY, J.P., MILLER, WOOTEN and LOVE, JJ., concur.