Matter of Cartier v. County of Nassau

• Decision Date: 12 March 2001
• Citation: 722 N.Y.S.2d 45,281 AD2d 447
• Parties: (A.D. 2 Dept. 2001) In the Matter of Ashley Cartier, etc., respondent, v County of Nassau, et al., appellants. 2000-04705 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 45

722 N.Y.S.2d 45 (A.D. 2 Dept. 2001)

In the Matter of Ashley Cartier, etc., respondent, v County of Nassau, et al., appellants.

2000-04705

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

March 12, 2001

Alfred F. Samenga, County Attorney, Mineola, N.Y. (Tara Talmadge of counsel), for appellants.

T. Glenn Hoffman, Bay Shore, N.Y., for respondent.

DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO, SANDRA J. FEUERSTEIN, JJ.

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), entered April 12, 2000, as, upon the granting of the appellants' motion to vacate their default in opposing the petition, granted the petition.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the proceeding is dismissed.

On December 30, 1997, the petitioner filed a notice of petition with a return date of January 30, 1998, and a petition pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim. The petitioner served the notice of petition and petition by regular mail. The attorney for the appellants opposed the petition on the ground, inter alia, that service of process was improper. On January 30, 1998, the petitioner re-served the notice of petition and petition on the appellants pursuant to CPLR 311. The notice of petition contained a return date of January 30, 1998. The petition was heard on October 21, 1998, and by order entered February 26, 1999, the Supreme Court granted the petition upon the appellants' default in opposing it. On February 25, 2000, the appellants moved pursuant to CPLR 5015(a)(4) to vacate their default.

The Supreme Court properly granted the appellants' motion to vacate their default as the Supreme Court did not have personal jurisdiction over the appellants. The original service of the notice of petition and petition by ordinary mail was jurisdictionally defective (see, CPLR 403[c]; Matter of Yak Taxi v Teke, 41 N.Y.2d 1020; Matter of Metropolitan Cas. & Prop. Ins. Co. v Suggs, 268 A.D.2d 240; Matter of Hanover Ins. Co. v McIntyre, 142 A.D.2d 728; Matter of Wausau Ins. Co. v Predestin, 114 A.D.2d 900; Matter of J.P.L., Inc. v L & A Music Co., 112 A.D.2d 230). The re-service of process which was accomplished on the return date of the petition was also jurisdictionally defective since it failed to give adequate notice of the return date to the appellants (see, Matter of Hawkins v McCall, ___ A.D.2d ___, 718 N.Y.S.2d 98; Matter of Vetrone v Mackin, 216 A.D.2d 839; Matter of Stream v Beisheim, 34 A.D.2d 329, 330-331).

Sin...