Johnson v. Marquez, 2002-07488.
| Decision Date | 29 December 2003 |
| Docket Number | 2003-02496.,2002-07488. |
| Citation | 2003 NY Slip Op 19964,770 N.Y.S.2d 377,2 A.D.3d 786 |
| Parties | ANITA JOHNSON et al., Respondents, v. MARTIN MARQUEZ et al., Appellants, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the appellants.
This action to recover damages for personal injuries arises out of a motor vehicle accident that occurred on July 21, 1998. The vehicle allegedly was owned by the defendant Martin Marquez and driven by the defendant Samson Telfort, both of whom were residents of the State of Massachusetts. The plaintiffs, who were passengers in the vehicle, commenced this action by filing a summons and complaint on July 11, 2001, against Marquez, Telfort, and the driver of another vehicle that was involved in the accident. Marquez and Telfort served an answer on December 3, 2001, which interposed an affirmative defense of lack of personal jurisdiction.
On April 11, 2002, Marquez and Telfort moved to dismiss the action insofar as asserted against them pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction because the plaintiffs failed to meet the service requirements of Vehicle and Traffic Law § 253 or CPLR 308. By order dated June 25, 2002, the Supreme Court, inter alia, denied their motion and granted the plaintiffs additional time to serve the appellants pursuant to Vehicle and Traffic Law § 253. We reverse.
Vehicle and Traffic Law § 253 (2) sets forth the method for service of a summons on nonresidents. It requires service of the summons upon the Secretary of State of New York, service upon the nonresidents by sending notice of the service by certified mail or registered mail return receipt requested, and a submission of an affidavit of compliance with these conditions. Here, the plaintiffs' affidavit of compliance failed to demonstrate that there had been compliance with the service requirements with respect to either the Secretary of State or the appellants. Instead, the affiant relied upon evidence of service of a summons in an earlier dismissed action. The affidavit made no reference to attempted service with respect to the instant action whatsoever, which is a blatant violation of all the requirements of Vehicle and Traffic Law § 253 (2). In addition, an affidavit of service provided by a process server...
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