SCHUSTER v. DECKOFF (2026)

Order, Supreme Court, New York County (Christopher Chin, J.), entered July 7, 2025, which adopted the findings and order, dated April 25, 2025, of the Special Referee, after a traverse hearing, and granted defendants' motion to dismiss the complaint filed under New York County index No. 156512/2022 for lack of personal jurisdiction and denied plaintiff's cross-motion to extend the time to effect personal service, unanimously affirmed, without costs.  Appeal from aforesaid Special Referee's order, to the extent it granted defendants' motion to dismiss the complaint filed under New York County index No. 160421/2022 for lack of personal jurisdiction, deemed an appeal from the July 7, 2025 Supreme Court order adopting the Special Referee's order, and so considered, the appeal is unanimously dismissed, without costs, for failure to perfect in accordance with the CPLR and the rules of this Court.

Plaintiff separately filed two identical personal injury actions against defendants in connection with a motor vehicle accident that resulted in the death of another individual, not a party to this action.  Defendant Stephen Deckoff owned the vehicle his son defendant Stephen E. Deckoff was driving when the accident occurred.

Although plaintiff appealed from the Special Referee's order under index No. 160421/2022 rather than Supreme Court's ensuing order, this Court exercises its discretion under CPLR 5520(c) to deem the notice of appeal as valid.  Upon review, we dismiss the appeal as plaintiff did not include the traverse hearing exhibits in the record on appeal and thus, the personal jurisdiction issues raised cannot be meaningfully entertained (see CPLR 5526;  Rules of App.Div., 1st Dept [22 NYCRR] § 1250.7;  Sebag v. Narvaez, 60 AD3d 485 [1st Dept 2009], lv denied 13 NY3d 711 [2009] ).

As to plaintiff's appeal of Supreme Court's order in connection with his personal injury action under index No. 156512/2022, the court properly granted defendants' motion to dismiss for lack of personal jurisdiction.  The competent evidence at the traverse hearing established that neither defendant resided at the Park Avenue address when plaintiff's process server made his lone attempt to serve the pleadings on defendants at that address.  Substituted service was not established as plaintiff failed to comply with the delivery and mailing requirements set forth in CPLR 308(2) (see AMK Capital Corp. v. Plotch, 230 AD3d 26, 31 [1st Dept 2024] ).

Supreme Court also properly exercised its discretion in denying plaintiff's cross-motion for an extension of time to serve the pleadings pursuant to CPLR 306–b.  Plaintiff failed to establish that reasonably diligent efforts were made to effect service of process in either of the two actions (see Henneberry v. Borstein, 91 AD3d 493, 496 [1st Dept 2012] ).

The first action was commenced in August 2022;  the second identical action was commenced in December 2022.  Plaintiff made only one actual service attempt at the Park Avenue address, in mid-December 2022.  Defendants moved in March 2023 to dismiss the two actions pursuant to CPLR 3211(a)(8) and 3211(a)(4).  Plaintiff thereafter moved in April 2023 for a 120–day extension of time to serve the pleadings pursuant to CPLR 306–b.  Plaintiff's untimely application for an extension, as measured from the action's first commencement in August 2022, was insufficient to grant his request for relief under the interest of justice standard (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 101, 105–106 [2001] ).

Moreover, plaintiff's cross-motion proffered no information to substantiate his allegation that he suffered serious injury as defined under the Insurance Law. Lastly, while plaintiff here alleges that defendant's vehicle made contact with his vehicle, plaintiff conceded in a prior action brought by the decedent's estate that there was no contact between his vehicle and defendant's vehicle.

We have considered plaintiff's remaining arguments and find them unavailing.