CPLR 2001 [must be merely technical]; CPLR 5015(a)(4)

CPLR 2001

CPLR 5015(a)(4)

Segway of N.Y., Inc. v Udit Group, Inc., 2014 NY Slip Op 05971 [2nd Dept. 2014]

However, the Supreme Court erred in applying CPLR 2001 so as to disregard the facial defects in the summons and notice of motion that were identified by the defendants. That section "may be used to cure only a technical infirmity'" (Ruffin v Lion Corp., 15 NY3d 578, 582, quoting Matter of Miller v Board of Assessors, 91 NY2d 82, 87). "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" (Ruffin v Lion Corp., 15 NY3d at 582 [internal quotation marks omitted]). Where a defect creates a "greater possibility" of frustrating the core principles of notice to the defendant, the defect must be regarded as substantial and courts may not disregard it under CPLR 2001 (id. at 583; see Brown v State of New York, 114 AD3d 632, 633).

Here, the notice of motion for summary judgment in lieu of complaint did not provide timely notice of the motion to the defendant Andrew Udit, who was served by substituted service pursuant to CPLR 308(2), inasmuch as the notice of motion set a return date that was prior to the expiration of the 30-day period within which that defendant was statutorily entitled to appear (see CPLR 320[a]; 3213). Furthermore, the copies of the notice of motion served upon the defendants with the summons pursuant to CPLR 3213 contained an affirmative misstatement of the address at which the motion could be defended (cf. CPLR 2214[a]). We deem it appropriate to take judicial notice (see Consolidated Edison Co. of N.Y. v Public Serv. Commn. of State of N.Y., 47 NY2d 94, 110, revd on other grounds, 447 US 530 and revd sub nom. on other grounds Central Hudson Gas & Elec. Corp. v Public Serv. Comm'n of N.Y., 447 US 557; Appelbaum v Deutsch, 111 AD2d 21, 22, affd 66 NY2d 975; Dougherty v 425 Dev. Assoc., 93 AD2d 438, 447; see also Jerome Prince, Richardson on Evidence §§ 2-202, 2-203 [Farrell 2008]) of the fact that the incorrect address given in the notice of motion pertained to an actual roadway located in Mineola, New York, and was not merely a misspelling of the correct address for the relevant courthouse. As such, the motion for summary judgment in lieu of complaint was made returnable to a location in Mineola at which the Supreme Court was not located, and at which the motion could not have been opposed. These defects in the notice of motion, under the particular circumstances of this case and in the context of an action commenced pursuant to CPLR 3213, created a greater possibility of frustrating the core principles of notice to the defendants (see Ruffin v Lion Corp., 15 NY3d at 583; Brown v State of New York, 114 AD3d at 633). Accordingly, these defects constitute "jurisdictional defect[s] that courts may not overlook" pursuant to CPLR 2001 (Ruffin v Lion Corp., 15 NY3d at 582; see Matter of Cartier v County of Nassau, 281 AD2d 477, 478; Matter of Hawkins v McCall, 278 AD2d 638, 638; Matter of Lincoln Plaza Tenants Corp. v Dinkins, 171 AD2d 577, 577; Matter of Common Council of City of Gloversville v Town Bd. of Johnstown, 144 AD2d 90, 92). Since the Supreme Court failed to acquire personal jurisdiction, "all subsequent proceedings are thereby rendered null and void" (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [internal quotation marks omitted]), and the default judgment entered against the defendants is "a nullity" (Prudence v Wright, 94 AD3d 1073, 1074; see Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889; Harkless v Reid, 23 AD3d 622, 623; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402).

Accordingly, the defendants' motion to vacate the judgment dated January 13, 2012, and thereupon to dismiss the action for lack of personal jurisdiction, should have been granted (see CPLR 5015[a][4]).

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