McCord v Larsen, 132 A.D.3d 1115, 18 N.Y.S.3d 458 [3rd Dept., 2015]
Plaintiff alleged that she was injured in a building owned by the defendant, due to a defective porch railing. She sued, and claimed to have served the summons by deliver-and-mail (CPLR 308 ). The defendant did not answer, and judgment by default was obtained against him.
He now moved to vacate the default judgment on the grounds that he had not received the summons and complaint in time to defend, and to dismiss the action for lack of jurisdiction. Supreme Court denied both branches of the motion.
The first question must be the jurisdictional one, since if there is no personal jurisdiction the judgment is void. The first step in deliver-and-mail service is delivery to a person of suitable age and discretion at the defendant’s actual place of business, dwelling place, or usual place of abode. The delivery in this case was made to the defendant’s ex-wife, at her residence in the Town of Blooming Grove, Orange County. The defendant had moved out long before the delivery, and claimed that he had moved his business from that address as well. However, the plaintiff showed proof that he advertised his business from that address, and had not changed the address with either the Postal Service or DMV. Delivery was therefore held to have been validly made, and jurisdiction properly upheld.
As to the default judgment, however, the court should have allowed vacatur. A defendant is entitled to vacate a default judgment under CPLR 317 where personal delivery of the summons was not made, where he or she did not receive notice in time to defend and has a meritorious defense, and where the motion is made within one year of receiving notice and less than five years from the entry of judgment.
As to actual receipt of notice, the defendant was able to show that the ex-wife who received delivery refused to forward the summons to him for a year and a half. Indeed, she wrote to the plaintiff’s attorney, and informed him that she “cannot and will not accept/hold/transfer any documents addressed to or naming [defendant].”
As to a meritorious defense, he conceded in an affidavit that he was the owner of the property where plaintiff fell, but claimed no notice of any defect in the railing, had not noticed any defect, and that there had been no prior accidents.
Having shown lack of notice of the action and a meritorious defense, the defendant was entitled to have the default judgment vacated.
Compare this result with Macchia v Russo, 67 NY2d 592 , where service was not properly made, although prompt notice was received. The summons and complaint had been delivered to the wrong person, who immediately gave it to the defendant. The Court of Appeals noted that the requirement for personal delivery to the defendant “could not be plainer,” and dismissed the complaint. The defendant’s prompt (and actual) receipt of the summons and complaint did not save jurisdiction.
McCord is the converse case, where service was properly made, although prompt notice was not received. The lack of notice does not invalidate the service. To hold otherwise, of course, would be to punish the plaintiff for circumstances beyond his control or even knowledge. The defendant, for his part, has a remedy under CPLR 317, by which he is able to present a defense.
The comparison leads to the conclusion that whether service is valid or not depends on what the process server does, and not on what the defendant ultimately receives.