Hsu v. Shields

• Decision Date: 13 November 2013
• Citation: 111 A.D.3d 674,2013 N.Y. Slip Op. 07452,974 N.Y.S.2d 800
• Parties: Paul Y. HSU, et al., appellants, v. Carolyn SHIELDS, et al., respondents.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 674
974 N.Y.S.2d 800
2013 N.Y. Slip Op. 07452

Paul Y. HSU, et al., appellants,
v.
Carolyn SHIELDS, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 13, 2013.

Paul Y. Hsu, New York, N.Y., and Cathy Y. Huang, New York, N.Y., appellants pro se (one brief filed).

Liu & Shields, Flushing, N.Y. (Carolyn Shields, pro se, and Ying Liu, pro se, of counsel), respondent pro se, and for respondents Carolyn Shields and Ying Liu.

In an action to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Queens County (Weiss, J.), dated January 19, 2012, which denied their motion for leave to enter a default judgment against the defendants upon their failure to appear or answer the complaint and granted the defendants' cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint on the ground of lack of personal jurisdiction.

ORDERED that the order is affirmed, without costs or disbursements.

As an initial matter, the Supreme Court providently exercised its discretion in considering the defendants' untimely opposition papers and cross motion, as adjournments of the motion and cross motion afforded the plaintiffs an opportunity to submit responsive papers ( see CPLR 2004, 2214; Lawrence v. Celtic Holdings, LLC, 85 A.D.3d 874, 925 N.Y.S.2d 172;Vlassis v. Corines, 254 A.D.2d 273, 678 N.Y.S.2d 290;Kavakis v. Total Care Sys., 209 A.D.2d 480, 619 N.Y.S.2d 634).

The Supreme Court properly denied the plaintiffs' motion for leave to enter a default judgment against the defendants and granted the defendants' cross motion to dismiss the complaint. The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff ( see Gottesman v. Friedman, 90 A.D.3d 608, 609, 934 N.Y.S.2d 436;Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343, 756 N.Y.S.2d 92;Bank of Am. Natl. Trust & Sav. Assn. v. Herrick, 233 A.D.2d 351, 650 N.Y.S.2d 754). Here, the affidavits of service filed by the plaintiffs did not demonstrate that the defendants were properly served pursuant to CPLR 308(2) and 310–a. Contrary to the plaintiffs' contention, sending multiple copies of the summons with notice and the complaint by regular mail and by Federal Express to the defendants at their place of business did not constitute proper service. Further, the defendants' demand for a complaint did not constitute an appearance in this action ( see CPLR 3012[b] ).

The...