Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), dated October 7, 2008. The order, insofar as appealed from, granted defendant Jose Torres's motion to vacate a default judgment as against him.

ORDERED that the order, insofar as appealed from, is reversed without costs and the matter is remitted to the Civil Court for a new determination of defendant Jose Torres's motion to vacate the default judgment as against him following a hearing to determine whether personal jurisdiction was obtained over said defendant.

The record reveals that defendant Jose Torres, in support of his motion to vacate the default judgment insofar as it was entered against him, denied ever having received a copy of the summons and complaint. In opposition to the motion, plaintiff claimed that proper service had been made by substituted service at defendant's address listed with the Department of Motor Vehicles (cf. Kalamadeen v Singh, 63 AD3d 1007 [2009]). However, plaintiff failed to produce a copy of the affidavit of service reflecting the alleged delivery of the summons and complaint. Nor is a copy of the affidavit contained in the Civil Court file. Without resolving this jurisdictional issue, the Civil Court granted defendant Jose Torres's motion to vacate the default judgment insofar as entered against him on the condition that he waive the defense of personal jurisdiction.

If service of process did not properly comply with CPLR 308, then any subsequent judgment of the court would be a nullity (Krisilas v Mount Sinai Hosp., 63 AD3d 887 [2009]; Anello v Barry, 149 AD2d 640 [1989]). The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void. Such a defect is not cured by the defendant's subsequent receipt of actual notice of the suit, since notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court (Macchia v Russo, 67 NY2d 592 [1986]; McMullen v Arnone, 79 AD2d 496 [1981]). [*2]

Accordingly, the Civil Court's order, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a new determination of defendant Jose Torres's motion following a hearing to determine whether personal jurisdiction was obtained over him.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: February 19, 2010