BOLD BROADCASTING LLC v. WAWALOAM RESERVATION INC (2024)

DECISION & ORDER

In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Jerry Garguilo, J.), dated July 12, 2023.  The order, insofar as appealed from, denied that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate a clerk's judgment of the same court entered December 14, 2022, upon the defendant's failure to appear or answer the complaint, which is in favor of the plaintiff and against the defendant in the total sum of $420,012.78.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate the clerk's judgment is granted.

In or about October 2022, the plaintiff commenced this action against the defendant to recover damages for breach of contract.  The plaintiff filed an affidavit of service in which the plaintiff's process server stated that service was made upon the defendant by delivery of a copy of the summons and complaint to “Wendy Lewis (office [illegible])” at an address in Rhode Island.  The defendant failed to appear or answer the complaint.  On December 14, 2022, a clerk's judgment was entered upon the defendant's default in favor of the plaintiff and against the defendant in the total sum of $420,012.78.  In May 2023, the defendant moved, inter alia, pursuant to CPLR 5015(a)(1) and (4) to vacate the clerk's judgment.  By order dated July 12, 2023, the Supreme Court, among other things, denied that branch of the motion.  The defendant appeals.

Pursuant to CPLR 311(a)(1), service upon a foreign 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.”  “In addition, service may be made upon someone whom the corporation cloaks with authority” (Aguilera v. Pistilli Constr. & Dev. Corp., 63 A.D.3d 765, 767, 882 N.Y.S.2d 145).  “The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff” (Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254;  see JPMorgan Chase Bank, N.A. v. Grinkorn, 172 A.D.3d 1183, 1185, 102 N.Y.S.3d 210).  “ ‘The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process.  In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void’ ” (Christiana Trust v. Leriche, 219 A.D.3d 564, 566, 194 N.Y.S.3d 143, quoting Washington Mut. Bank v. Murphy, 127 A.D.3d 1167, 1173–1174, 10 N.Y.S.3d 95;  see Matter of Exxon Mobil Corp. v. New York City Dept. of Envtl. Protection, 178 A.D.3d 696, 698, 114 N.Y.S.3d 88).

The plaintiff failed to establish that personal jurisdiction had been acquired over the defendant through proper service of process.  Although a process server's affidavit of service ordinarily constitutes prima facie evidence of proper service (see Hayden v. Southern Wine & Spirits of Upstate N.Y., Inc., 126 A.D.3d 673, 673, 5 N.Y.S.3d 222), here, the affidavit of service contained no indication that Lewis was an agent of the defendant authorized to accept service on the defendant's behalf (see CPLR 311[1][a];  Heller v. Frota Oceanica E Amazonica, S.A., 81 A.D.3d 894, 897, 920 N.Y.S.2d 86;  Hossain v. Fab Cab Corp., 57 A.D.3d 484, 485, 868 N.Y.S.2d 746;  Gleizer v. American Airlines, Inc., 30 A.D.3d 376, 815 N.Y.S.2d 740;  cf.  Hayden v. Southern Wine & Spirits of Upstate N.Y., Inc., 126 A.D.3d 673, 673, 5 N.Y.S.3d 222).  Accordingly, the Supreme Court should have granted, pursuant to CPLR 5015(a)(4), that branch of the defendant's motion which was to vacate the clerk's judgment.

The defendant's remaining contentions need not be reached in light of our determination.

DILLON, J.P., DOWLING, TAYLOR and VENTURA, JJ., concur.