This action, originally commenced in Nassau County on October 20, 2010, seeks enforcement, by means of a motion for summary judgment in lieu of complaint pursuant to CPLR 3213, of a Consolidation, Extension and Modification Agreement dated December 28, 1994 between Plaintiff's predecessor-in-interest and defendant Cathedral Church of St. Lucy's. Defendant cross-moved for dismissal pursuant to CPLR 3211, requesting in the alternative that the action be transferred to Kings County pursuant to CPLR 510. With a decision and order dated March 17, 2011, Hon. Timothy S. Driscoll, Supreme Court, Nassau County, granted Defendant's cross-motion to the extent that it sought transfer of the action, and transferred the action, together with Plaintiff's motion and Defendant's cross-motion, to Kings County.

After excursions through a Commercial Division part presided over by Hon. Carolyn E. Demarest and a general trial part presided over by the late Hon. Herbert Kramer, the action and motions found their way into the inventory of this Court, where, for reason known only in the rarefied atmosphere of judicial bureaucracy, they have languished. In order to put the motions before the Court for determination, Plaintiff now moves for an order "granting Summary Judgment in favor of the plaintiff pursuant to CPLR section 3212" (see notice of motion dated December 17, 2012.) Plaintiff purports to include among its papers on this motion all papers submitted to Justice Driscoll, and with a "supplemental affirmation" Defendant fills in some gaps.

There is no doubt that both Plaintiff and Defendant want the original motion and cross-motion determined now. The Court considers, therefore, notwithstanding that the calendar shows only a motion by Plaintiff for summary judgment pursuant to CPLR 3212, that it has for determination Plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 and Defendant's cross-motion for an order, among other things, for dismissal pursuant to CPLR 3211 (a) (5) and (a) (8.)

Since a favorable determination of Defendant's motion to dismiss pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction would render Plaintiff's motion and the balance of Defendant's motion moot, that contention is addressed first. Indeed, there is authority that, as part of its prima facie burden on its motion pursuant to CPLR 3213, Plaintiff bears the burden of establishing that Defendant was properly served. (See Cadle Co. v Ayala, 47 AD3d 919, 920 [2d Dept 2008]; Pollack v Haberman, 2011 NY Slip Op 32508 [U], * * 5 [Sup Ct, NY County 2011]; Malament v Jong Kim, 22 Misc 3d 1110 [A], 2008 NY Slip Op 52622 [U] [Sup Ct, Nassau County 2008] [Austin, J.].)

"Jurisdiction in a CPLR 3213 motion is obtained over the defendant by serving the defendant with the summons, notice of motion and supporting papers in a method prescribed in CPLR Article 3." (Id.; see also Fattarusso v Levco Am. Improvement Corp., 144 AD2d 626, 626 [2d Dept 1988]; Nalodka v Nalodka, 2013 NY Slip Op 50375 [U] * * 3 [Sup Ct, Kings County 2013].)

Plaintiff submits an affidavit of service of licensed process server Peter M. Stoute, dated October 13, 2010, that asserts that service of the summons and notice of motion was made on defendant Cathedral Church of St. Lucy's at 802 Kent Avenue, Brooklyn, by affixation and mailing [*2]pursuant to CPLR 308 (4). (See affirmation in opposition to cross-motion and in further support of motion at 4 and exhibit A.) (A separate affidavit of service of the same date attests to affixation and mailing of an amended notice of motion.) As will appear, however, such affixation and mailing was ineffective in obtaining personal jurisdiction over Defendant.

Defendant was incorporated in 1986 pursuant to the Religious Corporation Law under the name "St. Lucy's Cathedral Old Roman Catholic Church." Indeed, an action commenced in 2005 by Plaintiff's predecessor-in-interest, to foreclose on the mortgage granted to secure payment of the loan that is the subject of this action, was dismissed on February 25, 2008 in a decision, order and judgment of Hon. Herbert Kramer because the mortgage had not been approved in accordance with § 12 of the Religious Corporation Law.

CPLR 311 provides that "[p]ersonal service upon a corporation . . . shall be made by delivering the summons . . . to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service" (CPLR 311 [a] [1].) Alternative methods of service in accordance with specified provisions of the Business Corporation Law and Not-For-Profit Corporation Law are also generally available, but they are not available for service upon religious corporations (see Religious Corporation Law § 2-b [1] [c], [3]; Schoenthal v Beth Jacob Teachers Seminary of Am., 176 Misc 2d 958, 959 [Sup Ct, Kings County 1998]), or apply only to unauthorized foreign corporations (see Not-For-Profit Corporation Law § 307.)

The affidavit of service does not designate, by name or title, the intended recipient of the papers. Rather, service is purportedly made on "Cathedral Church of St. Lucy's", which the affidavit does not identify as a corporation, at 802 Kent Avenue, its "place of business." But the problem is not the affidavit of service, which would not necessarily be fatal to jurisdiction (see Matter of of Tanash v Amien, 82 AD3d 1252, 1252-53 [2d Dept 2011]; Mariano v Steinberg, 87 AD2d 606 [2d Dept 1982]), but the method of service.

It is clear that "delivery" for purposes of CPLR 311 (a) means "personally delivered" to any one of the corporate representatives listed in CPLR 311 (a) (1) (see Lakeside Concrete Corp. v Pine Hollow Bldg. Corp., 104 AD2d 551, 551-52 [2d Dept 1984], aff'd 65 NY2d 865 [1985]; Strong v Bi-Lo Wholesalers, 265 AD2d 745, 745 [3d Dept 1999]); and that purported service on a corporation pursuant to CPLR 308 (2) or (4) is ineffective to obtain jurisdiction over the corporation (see Lakeside Concrete Corp. v Pine Hollow Bldg Corp., 104 AD2d at 552; Perez v Garcia, 8 Misc 3d 1002 [A], 2005 NY Slip Op 50902 [U], * * * 3 [Sup Ct, Bronx County 2005] [Renwich, J.]; see also Conde v Zaganjor, 66 AD3d 947, 948 [2d Dept 2009].)

Contrary to Plaintiff's contention that, "[a]t the very least, questions of service would require a hearing to determine the issue" (see affirmation in opposition to cross-motion and in further support of motion at 4), and unlike the authority on which Plaintiff relies (see Thomas v Maloney, 289 AD2d 222 [2d Dept 2001]), there is no factual issue to be addressed at a hearing (see Matter of County Side Sand & Gravel v Town of Pomfret Zoning Bd. of Appeals, 57 AD3d 1501, 1502 [4th [*3]Dept 2008].) And it is axiomatic that actual notice of a lawsuit does not cure a jurisdictional defect. (See County of Nassau v Yohannon, 34 AD3d 620, 621 [2d Dept 2006] [internal quotation marks and citation omitted].)

Plaintiff's motion for summary judgment in lieu of complaint is denied. Defendant's motion to dismiss the action for lack of personal jurisdiction is granted. Defendant may enter judgment accordingly.

April 4, 2012_____________________

Jack M. Battaglia

Justice, Supreme Court