PEDRO TORRES JIMENEZ MD v. AMERICAN ACCESS CASUALTY COMPANY (2025)

This Honorable Court Decides and Orders without opposition, Plaintiff's Motion for Default Judgment against Defendant pursuant to CPLR 3215 and CPLR 320 is hereby DENIED.

It is well settled, “a process server's affidavit of service gives rise to a presumption of proper service” which may be rebutted by “[a] sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit”, resulting in a traverse hearing (Wells Fargo Bank, NA v Tobing, 175 AD3d 745, 747 [2d Dept 2019]), citing Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 776 [2d Dept 2017]; see Citibank, N.A. v Balsamo, 144 AD3d 964, 964 [2d Dept 2016]; see Palma v Apatow, 230 AD3d 1244, 1245 [2d Dept 2024]). However, where the affidavit of service on its face presents deviation of, or inconsistency with strict adherence to the statutory method of service relegates the affidavit of service void ab initio. Therefore, its validity is not an issue for a sworn fact-finding traverse hearing but rather decided as a matter of law.

It is a foundational legal principle that the “court lacks personal jurisdiction over a defendant who is not properly served with process” even where defendant receives timely notice of the action.” (Palma at 1245, citing Everbank v Kelly, 203 AD3d 138 [2d Dept 2022]). In this instant matter, affidavit of service states effectuated pursuant to VTL § 253.

“1. The use or operation by a non-resident of a vehicle in this state, or the use or operation in this state of a vehicle in the business of a non-resident, or the use or operation in this state of a vehicle owned by a non-resident if so used or operated with his permission, express or implied, shall be deemed equivalent to an appointment by such non-resident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such non-resident may be involved while using or operating such vehicle in this state or in which such vehicle may be involved while being used or operated in this state in the business of such non-resident or with the permission, express or implied, of such non-resident owner; and such use or operation shall be deemed a signification of his agreement that any such summons against him which is so served shall be of the same legal force and validity as if served on him personally within the state and within the territorial jurisdiction of the court from which the summons issues”

(Vehicle and Traffic Law § 253).

Here, Plaintiff commenced this case against Defendant, an Illinois No Fault corporate insurance carrier, for reimbursement for medical services rendered to the assignor. The Legislative Intent of VTL § 253 envisioned to subject the nonresident natural person owners or operators who are parties in motor vehicle accidents within New York State, to be served process upon the Secretary of State with subsequent mailing requirements. Defendant is not a nonresident operator, nor a nonresident owner in strict compliance with VTL § 253 (Rosa v Allstate Ins. Co., 981 F2d 669, 671 [2d Cir. 1992]). Therefore, as a matter of law, this method of service is improper on its face and void ab initio. Plaintiff failed to properly effectuate service of process divesting This Court of jurisdiction over Defendant.

For the forgoing reasons Plaintiff's Default Judgment is hereby Denied and Case is dismissed without prejudice.

This constitutes Decision and Order of Court.

Sandra Elena Roper, J.