Tramell D. Caldeyro, Plaintiff, v. TPX LLC LUCRECIO TIMOTEO VALS (2025)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 were read on this motion to/for DISMISSAL.

In this personal injury action, TPX Transport, LLC (TPX) and Lucrecio Timoteo Vals (Vals) (collectively, defendants) move for an order dismissing the complaint of plaintiff Tramell D. Caldeyro (plaintiff) with prejudice. Defendants seek dismissal pursuant to Civil Practice Law and Rules (CPLR) §§ 3211 (a) (8) and (5), contending that the court lacks personal jurisdiction over them and that the statute of limitations expired (NY St Cts Elec Filing [NYSCEF] Doc Nos. 5, notice of motion and 6, mem of law).¹ In the alternative, defendants seek dismissal pursuant to CPLR § 3215 (c), contending that plaintiff failed to timely seek a default judgment.²

Plaintiff filed opposition (NYSCEF Doc Nos. 19-24), but no cross-motion. In the opposition, plaintiff requests an order deeming the affidavits of service of process as timely filed, nunc pro tunc. Plaintiff further requests that the order afford defendants an additional 30 days to answer the complaint. Alternatively, if the court dismisses the complaint, plaintiff asks that the dismissal be without prejudice to commencement of a new action pursuant to CPLR § 205 (a).

Defendants did not submit a reply.³ For the reasons stated below, the complaint is dismissed with prejudice.

Pertinent Background

Plaintiff commenced this action by summons and complaint filed on May 3, 2022 (NYSCEF Doc No. 8, summons and complaint). The complaint alleges that plaintiff was injured as a result of a May 6, 2019 accident. The accident allegedly involved a motor vehicle owned and operated by plaintiff and a motor vehicle owned by defendant TPX, but operated by defendant Vals within the scope of his employment with TPX.

According to the complaint, plaintiff is a New York resident, defendant Vals is a Pennsylvania resident, and defendant TPX is a Pennsylvania limited liability company. Plaintiff filed an affidavit of service and supplemental affidavit of service for each defendant on December 12, 2022 (NYSCEF Doc Nos. 10 and 11). In the affidavit for defendant TPX, the process server attests that he served defendant by personally delivering a copy of the summons, complaint, and notice of electronic filing to an authorized agent of the Secretary of State on May 20, 2022, pursuant to Limited Liability Company Law (LLCL) § 304. The affidavit sets forth the name of the authorized agent and her physical description. The affidavit for defendant TPX is nearly identical to the affidavit for defendant Vals. The notable difference is that for defendant Vals, the process server attests that service was pursuant to Vehicle and Traffic Law (VTL) § 253.

In each supplemental affidavit, the process server avers that on May 20, 2022, he mailed defendant a copy of the summons, complaint, notice of electronic filing, and notice of service upon the Secretary of State. As to defendant TPX, the process server claims that he sent the documents by registered mail return receipt requested, and that the receipt is attached to the affidavit. However, the receipt is not attached, nor filed as an exhibit to the motion. As to defendant Vals, the process server avers that he sent the documents via certified mail return receipt requested and first-class mail, that no proof of the certified mailing was received, and that tracking information is attached to the affidavit. The printout of the United States Postal Service (USPS) tracking history indicates that a package was mailed via certified mail, not that it was delivered. Specifically, it indicates that a certified package arrived at a USPS distribution center on May 20, 2022 and was still in transit as of May 25, 2022. The last entry reads: "Your package is moving within the USPS network[,] [it] is on track to be delivered to its final destination [and] [i]t is currently in transit to the next facility" (NYSCEF Doc No. 11 at 4). Further, although not mentioned by the process server, attached to the affidavit is a copy of the USPS certified mail receipt addressed to defendant Vals. There are two boxes on the certified mail receipt form that the process server could have checked off to request a return receipt, one for a hardcopy and the other for an electronic copy. Neither box is checked off.

For their part, defendants acknowledge that they were served on May 20, 2022 (NYSCEF Doc No. 7, counsel's affirmation). The affidavits of service establish that May 20, 2022 is the date that the process server personally delivered the pleadings to an authorized agent of the Secretary of State and allegedly mailed the documents to defendants.

Parties' Arguments

Defendants argue that the complaint should be dismissed for lack of personal jurisdiction pursuant to CPLR § 3211 (a) (8), citing CPLR § 308 (2) as the applicable service provision. CPLR § 308 (2) permits substitute "service upon a natural person . . . by delivering the [pleadings] within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served" when such delivery is coupled with a mailing of the same to the person's residence or business (CPLR § 308 [2]). The statute requires that the "delivery and mailing [occur] within twenty days of each other" (id.). It also requires the filing of the proof of service with the clerk of the court "within twenty days of either such delivery or mailing, whichever is effected later" (id.). Service is complete ten days after plaintiff files the proof of service (id.). Defendants contend that plaintiff filed the proofs of service outside the 20-day period set by CPLR § 308 (2), and therefore such proof is void and the court lacks personal jurisdiction over them. Defendants further contend that the complaint must be dismissed as plaintiff did not effectuate service of process before the applicable 3-year statute of limitations expired.⁴

In response, plaintiff argues that the "failure to timely file proof of service is merely a procedural irregularity that may be cured by the Court, and not a jurisdictional defect" (NYSCEF Doc No. 19, counsel's affirmation ¶ 5). Plaintiff further argues that the expiration of the statute of limitations has no effect on the court's discretionary authority to cure a procedural irregularity. Plaintiff claims that the statute of limitations expired on December 20, 2022, 8 days after he filed the proofs of service on December 12, 2022.⁵ Apart from this, plaintiff asserts that defendants conceded that they were served on May 20, 2022. In sum, plaintiff's position is that the late filing of the affidavits of service is not dispositive as defendants were otherwise timely served.

Legal Analysis

The "court lacks personal jurisdiction over a defendant who is not properly served with process" (Palma v Apatow, 230 AD3d 1244, 1245 [2d Dept 2024] [citation omitted]). "When the requirements for service of process have not been met, it is irrelevant that [a] defendant may have actually received the documents" (Raschel v Rish, 69 NY2d 694, 697 [1986]). Additionally, "the fact that a defendant has received prompt notice of the action is of no moment" (Macchia v Russo, 67 NY2d 592, 595 [1986]). This is because "[n]otice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court" (id.). Thus, it is immaterial that defendants here may have received the pleadings and/or had notice of the action. Plaintiff, in opposing defendants' motion, "has the burden of presenting sufficient evidence, through affidavits and relevant documents, to demonstrate that jurisdiction over the defendants is warranted" (Bangladesh Bank v Rizal Commercial Banking Corp., 226 AD3d 60, 73-74 [1st Dept 2024]).

Despite this burden, neither plaintiff (nor defendants) address the correct service of process statutes in their arguments. Reliance on CPLR § 308 (2) is misplaced. The affidavits of service state that service was made pursuant to VTL § 253 and LLCL § 304. VTL § 253 sets forth the service of process requirements for a New York resident's action against a non-resident, arising from an "accident or collision in [New York] which such non-resident may be involved" (VTL § 253 [1]). It applies to this action as plaintiff alleges that he, a New York resident, and defendant Vals, a non-resident, were involved in a motor vehicle accident in New York. Further, CPLR § 308 (2) is inapplicable to this action as defendant TPX is a limited liability company, and the provision "is only applicable to service upon a natural person" (Lakeside Concrete Corp. v Pine Hollow Bldg. Corp., 104 AD2d 551, 551-552 [2d Dept 1984] [holding that plaintiff could not use CPLR § 308 (2) "to acquire personal jurisdiction over a domestic corporation by personal service"]; see also Faravelli v Bankers Trust Co., 85 AD2d 335, 339-340 [1st Dept 1982], affd 59 NY2d 615 [1983]).

Thus, the court turns its attention to the applicable service of process statutes, LLCL § 304 and VTL § 253. LLCL § 304, entitled "Service of process on unauthorized foreign limited liability companies," requires a plaintiff (i) to deliver a copy of the summons and complaint to the Secretary of State; (ii) to deliver notice of that service and a copy of the pleadings to the LLC by personal delivery or registered mail, return receipt requested; and (iii) to file an affidavit of compliance with the clerk of the court (LLCL § 304 [a]-[e]).⁶ Where a plaintiff opted for registered mail and the LLC accepted delivery, plaintiff must file an affidavit of compliance and the signed returned receipt within 30 days after receipt thereof (LLCL § 304 [e]). But if the LLC refused to accept the delivery of the registered mail, plaintiff must promptly send the documents by regular mail, together with a copy of the notice of the mailing by registered mail and a copy of the proof that the LLC refused to accept the registered mail (id.). Then, plaintiff must file an affidavit of compliance that states that the LLC refused delivery of the registered mail and that a second mailing was made by regular mail (id.). The filing must contain a copy of "the original envelope with a notation by the postal authorities that acceptance was refused" (id.). Regardless of whether the registered mail was accepted or refused, service of process is not complete until 10 days after plaintiff files the requisite papers with the clerk of the court (id.).

LLCL § 304 and VTL § 253 have comparable service of process requirements. However, VTL § 253 gives a plaintiff the option to use either registered or certified mail to send the requisite documents to a defendant (VTL § 253 [2]). The statute also enumerates three, not two, items of available proof that can be filed with an affidavit of compliance (id.). The first item is "a return receipt purporting to be signed by defendant or a person qualified to receive his certified mail or registered mail" (id.). The second item is "the original envelope bearing a notation by the postal authorities that receipt was refused" (id.). The third item is "the original envelope bearing a notation by the postal authorities" that the envelope was returned "unclaimed" (id.). Where a plaintiff receives the original envelope bearing either postal service notation, plaintiff must promptly mail the documents by regular mail (id.). For all three items, plaintiff must file a copy of the same with the clerk of the court, together with an affidavit of compliance (id.). Also, if the original envelope bears an "unclaimed" notation, plaintiff must provide the court with proof of the second mailing by regular mail, i.e. a mailing certificate (id.). Plaintiff has 30 days to file the requisite papers after receiving the signed return receipt or the marked original envelope (id.). Unlike LLCL § 304, service of process is complete as soon as plaintiff files the requisite papers with the clerk of the court (id.).

Furthermore, the court relies upon Global Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC (153 AD3d 606, 607 [2d Dept 2017]) and Bingham v Ryder Truck Rental (110 AD2d 867, 869 [2d Dept 1985]) which hold, respectively, that a plaintiff must strictly comply with LLCL § 304 and VTL § 253.⁷ Plaintiff did not meet this standard as to either defendant. Plaintiff filed two affidavits of service and two supplemental affidavits of service instead of filing affidavits of compliance (see Chan v Onyx Capital, LLC, 156 AD3d 1361, 1363 [4th Dept 2017]; Global Liberty Ins. Co., 153 AD3d at 607). Plaintiff filed the affidavits of service late, well beyond the statutory time periods. Plaintiff did not provide any copies of original mailing envelopes bearing a postal notation nor any signed return receipts, as required by statute. As such, dismissal of the complaint is warranted.

This conclusion is consistent with reasoning in Flick v Stewart-Warner Corp. (76 NY2d 50 [1990]). There, the Court of Appeals held "that strict compliance with the procedures of Business Corporation Law [BCL] § 307 is required to effect service on an unauthorized foreign corporation" (Flick at 57). It explained that:

"In the case of an unauthorized foreign corporation . . . the designation of the Secretary of State as its agent for service is imputed, not actual . . . .Because the appointment of the Secretary of State as agent is a constructive rather than an actual designation, the statute contains procedures calculated to assure that the foreign corporation, in fact, receives a copy of the process . . . The proof called for in the affidavit of compliance is that the required actual notice has been given either by personal service or by registered mail . . . These are not mere procedural technicalities but measures designed to satisfy due process requirements of actual notice" (Flick at 55-56 [internal citations omitted] [emphasis added]).

Within its analysis, the Court of Appeals noted that VTL § 253 contains "a similar requirement of prior compliance with all statutory procedures and safeguards as a precondition for considering the service of process to be complete" (id.). Relatedly, in Chan, the Fourth Department discussed Flick and noted that BCL § 307 is "substantively identical" to LLCL § 304 (Chan, 156 AD3d at 1362). Thus, the procedures set forth in LLCL § 304 and VTL § 253 are designed to satisfy the due process requirements of actual notice, and plaintiff here did not demonstrate that such requirements were satisfied.

In view of this holding, the court need not reach the parties' arguments with respect to CPLR § 3215 (c). Lastly, plaintiff is not entitled to commence a new action pursuant to CPLR § 205 (a) as the statute explicitly prohibits relief when an action is dismissed for lack of personal jurisdiction (CPLR § 205 [a]).

CONCLUSION and ORDER

The Court has considered the parties' remaining contentions and finds them unavailing. Accordingly, it is

ORDERED that defendants TPX Transport, LLC and Lucrecio Timoteo Vals' motion to dismiss is granted and the complaint is dismissed with prejudice; and it is further

ORDERED that within 30 days of entry, defendants shall serve a copy of this decision and order on plaintiff with notice of entry; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

DATE 1/31/2025

FOOTNOTES

1.   Defendants' notice of motion does not specify this relief except to the extent that it refers to CPLR § 3211 (a) (8), the subsection that governs dismissal for lack of personal jurisdiction. However, defendants' notice of motion contains a general prayer for relief and their memorandum of law contains a two-pronged argument about personal jurisdiction and the statute of limitations. Under these circumstances, the court has discretion to treat this portion of the motion as being made pursuant to CPLR §§ 3211 (a) (8) and (5) (Fifth & Fifty-Fifth Residence Club Assn., Inc. v Vistana Signature Experiences, Inc., 217 AD3d 564, 564-565 [1st Dept 2023] [affirming dismissal of a complaint where "defendants' notice of motion did not specify that they sought dismissal pursuant to [CPLR §] 3211 (a) (5) [as] their arguments on the motion expressly argued application of the statute of limitations"]).

2.   Defendants' notice of motion also refers to CPLR §§ 3211 (a) (1) and (7) as grounds for dismissal, though defendants do not raise any arguments in support of that relief. Thus, that portion of the motion is denied.

3.   In opposing the motion, plaintiff stressed that defendants were not entitled to serve a reply. Defendants served the motion on June 23, 2023 and made it returnable on July 5, 2023. The time between these dates is 12 days. A reply is permitted when the return date is 16 days or more after a motion is served (see CPLR § 2214 [b]).

4.   Defendants are correct that personal injury actions have a 3-year statute of limitations (CPLR § 214 [5]).

5.   Plaintiff is correct that the statute of limitations period ended on December 20, 2022. Governor Andrew Cuomo issued Executive Orders that tolled the statute of limitations from March 20, 2020 through November 3, 2020, i.e. 228 days (Jones v Motor Veh. Acc. Indem. Corp., 83 Misc 3d 127 [A], 2024 NY Slip Op 50721 (U) [App Term, 1st Dept 2024]; see also Murphy v Harris, 210 AD3d 410, 411-412 [1st Dept 2022]). December 20, 2022 is 3 years and 228 days from May 6, 2019, the date of the accident.

6.   Defendants' affirmation and memorandum of law and plaintiff's affirmation are all silent as to whether TPX was authorized to do business in New York.

7.   However, in Albrecht v Gordon (182 AD2d 1131, 1131 [4th Dept 1992]), the Fourth Department held that substantial compliance with VTL § 253 is sufficient. There, the court concluded that plaintiffs substantially complied with the statute's service of process requirements because they mailed a copy of the pleadings to defendant by certified mail, return receipt requested (id.). The court noted that "[d]efendant received the mailing and was fully apprised of the nature of the action commenced against him" (id.). Albrecht is distinguishable from the present action as the process server in this action did not request a return receipt with the certified mailing to defendant Vals. In fact, plaintiff provided no proof that defendant received the certified mailing.

James G. Clynes, J.