[*1]
State Farm Mut. Auto. Ins. Co. v Williams
2016 NY Slip Op 50468(U) [51 Misc 3d 133(A)] [51 Misc 3d 133(A)]
Decided on March 7, 2016
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 7, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ.
2015-495 Q C

State Farm Mutual Automobile Insurance Company, as Subrogee of JAMES CARLUCCI, Appellant,

against

Lee A. Williams, Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered February 25, 2015. The order granted defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this subrogation action, plaintiff appeals from an order of the Civil Court which granted defendant's motion to vacate a default judgment that had been entered against him after he had failed to appear or answer.

In support of his motion to vacate, defendant asserted that he had never received a copy of the summons and complaint, which indicated that defendant had a South Carolina address. In opposition to defendant's motion, plaintiff asserted that proper service had been effectuated pursuant to Vehicle and Traffic Law § 253 (2), which provides that service of process upon a nonresident may be made by serving the summons and complaint upon the Secretary of State and by sending the defendant notice of such service and a copy of the summons and complaint by certified mail or registered mail with return receipt requested. Although plaintiff offered an affidavit of service demonstrating that a copy of the summons and complaint had been personally delivered to an office of the Secretary of State, plaintiff failed to demonstrate that it had mailed the necessary notice of such service plus a copy of the summons and complaint to defendant.[FN1] Under these circumstances, plaintiff failed to establish that defendant had been properly served. It is noted that defendant does not seek to dismiss the complaint based on lack of personal jurisdiction but, rather, seeks to vacate the default judgment entered against him and to restore [*2]the matter to the calendar so that he may defend on the merits.

Accordingly, the order is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Decision Date: March 07, 2016

Footnotes


Footnote 1: We note that the record does not include plaintiff's filed affidavit of compliance, as required by Vehicle and Traffic Law § 253 (2), accompanied by either (1) a signed return receipt; or (2) the original envelope bearing a notation that receipt was refused, and an affidavit by plaintiff that "notice of such mailing and refusal was forthwith sent to the defendant by ordinary mail"; or (3) the original envelope bearing a notation that the registered or certified letter was mailed and returned as unclaimed, and an affidavit by plaintiff that process was sent again by ordinary mail and proof of that mailing.