Opinion
2012-05-10
In re Hector VARGAS, Petitioner–Appellant, v. STATE of New York, et al., Respondents–Respondents.
Hector Vargas, appellant pro se. Eric T. Schneiderman, Attorney General, New York (Ann P. Zybert of counsel), for respondents.
Hector Vargas, appellant pro se. Eric T. Schneiderman, Attorney General, New York (Ann P. Zybert of counsel), for respondents.
FRIEDMAN, J.P., SWEENY, DeGRASSE, ABDUS–SALAAM, ROMÁN, JJ.
Proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Robert E. Torres, J.], entered September 26, 2011), seeking to annul a determination of respondent New York State Department of Motor Vehicles (DMV), dated January 28, 2011, which, after a hearing, affirmed petitioner's traffic conviction and imposed a fine of $130, unanimously dismissed, without costs.
Upon exercising our power to review Supreme Court's order denying respondents' cross motion to dismiss this proceeding on procedural grounds ( see CPLR 7804 [g]; Matter of Wittie v. State of N.Y. Off. of Children & Family Servs., 55 A.D.3d 842, 843, 866 N.Y.S.2d 692 [2008]; Matter of Desmone v. Blum, 99 A.D.2d 170, 177, 473 N.Y.S.2d 196 [1984] ), we find that respondent's cross motion should have been granted. It is undisputed that petitioner never served the notice of petition and petition upon respondent DMV's chief executive officer or a person designated by the chief executive officer to receive service (CPLR 307[2] ). DMV's receipt of the notice of petition and petition from the Attorney General's office did not provide personal jurisdiction over the DMV ( see Matter of Lowney v. New York State Div. of Human Rights, 68 A.D.3d 551, 551, 889 N.Y.S.2d 463 [2009] ). Further, respondent State of New York is not a proper party to this proceeding since it is not a “body or officer” within the meaning of CPLR 7802(a) ( see Kirk v. Department of Motor Vehs., 22 A.D.3d 240, 241, 801 N.Y.S.2d 533 [2005] ). Were we to address the merits of the petition, we would find that substantial evidence supports the DMV's determination.