DeMartino v. Rivera
| Decision Date | 20 March 1989 |
| Citation | 539 N.Y.S.2d 38,148 A.D.2d 568 |
| Parties | Joseph DeMARTINO, Respondent, v. Amador RIVERA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Barry, McTiernan & Moore, New York City (Roger P. McTiernan and Carol Ann Weinman, of counsel), for appellant.
Subin Associates, New York City (Sally Weinraub, of counsel), for respondent.
Before MOLLEN, P.J., and MANGANO, THOMPSON and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (I. Aronin, J.), dated June 14, 1988, which denied his motion to vacate a judgment entered upon his default and thereupon to dismiss the complaint on the ground, inter alia, of the Statute of Limitations.
ORDERED that the order is reversed, on the law, with costs, the motion to vacate the default is granted and the action is dismissed as time-barred.
On September 4, 1984, a car driven by the plaintiff, Joseph DeMartino was struck by a car driven by the defendant, Amador Rivera, on a highway in New Jersey. At the time of the accident both the plaintiff and the defendant provided the police with addresses indicating New Jersey residences. Both vehicles were also registered in New Jersey.
Almost three years after the accident, the defendant, who is not fluent in English, received a series of telephone calls directing him to come to New York to get "some papers" relating to the subject accident. The caller is alleged to have repeatedly threatened that if the defendant failed to come to New York as directed he would be faced with "serious legal consequences and problems". The defendant eventually acceded to the caller's demands and, accompanied by his brother-in-law, travelled to an exit on the Staten Island Expressway as directed by the caller, where an individual in an awaiting car handed him "some papers" and $46 cash. On the defendant's return trip to New Jersey his brother-in-law informed him that the papers were a summons and complaint and advised him to send them to his insurance broker. The defendant's answer, which was served in November 1987, was rejected by the plaintiff as untimely. Thereafter, the plaintiff obtained a default judgment against the defendant. The Supreme Court denied the defendant's motion for vacatur of the default, on the ground, inter alia, of improper service of process, and for dismissal of the action on the ground, inter alia, that it was time barred under the applicable Statute of Limitations. We disagree.
It is well settled that where service of process has been improperly effected, any resulting default judgment is a nullity. This is so even where the defendant had actual notice of the lawsuit, and no meritorious defense, for in such a case, the court never had personal jurisdiction over the defendant (Chase Manhattan Bank v. Carlson, 113 A.D.2d 734, 493 N.Y.S.2d 339; Shaw v. Shaw, 97 A.D.2d 403, 467 N.Y.S.2d 231). At bar, the essence of the caller's statements was that if the defendant came to New York...
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