Ping Zhang, appellant, v. Zhao Chen Yu, et al., respondents. (2026)

Argued—November 10, 2025

DECISION & ORDER

A/

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered June 14, 2023.  The order denied the plaintiff's motion pursuant to CPLR 5015(a)(4) to vacate an order of the same court dated August 1, 2017, denying the defendants' unopposed motion to dismiss the complaint.

ORDERED that the order entered June 14, 2023, is affirmed, with costs.

In November 2015, the plaintiff commenced this action to recover damages for personal injuries allegedly sustained as a result of an automobile accident in August 2013.  In an order dated August 1, 2017 (hereinafter the August 2017 order), the Supreme Court denied the defendants' unopposed motion to dismiss the complaint for failing to timely serve them with the summons and complaint (see CPLR 306–b) or, in the alternative, for failing to seek a default judgment against the defendants within one year of their default.  The defendants appealed from the August 2017 order.  In a decision and order dated May 22, 2019, this Court reversed and granted that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against the defendant Shu Guang Shi for failure to timely serve that defendant and granted that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against the defendant Zhao Chen Yu as abandoned (see Ping Zhang v. Zhao Chen Yu, 172 AD3d 1256).  The plaintiff thereafter moved pursuant to CPLR 5015(a)(4) to vacate the August 2017 order on the ground that the defendants served the plaintiff with the motion to dismiss the complaint at the plaintiff's counsel's prior address, even though the plaintiff's counsel's new address was readily available to the defendants.  In an order entered June 14, 2023, the Supreme Court denied the plaintiff's motion.  The plaintiff appeals.

“ ‘Under CPLR 5015(a)(4), a default must be vacated once the movant demonstrates lack of jurisdiction’ ” (NYCTL 2019–A Trust v. Westside Plaza Realty, LLC, 248 AD3d 936, 936, quoting Matter of Foreclosure of Tax Liens, 144 AD3d 1033, 1034).  The “failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void” (Wilmington Trust N.A. v. Borukhov, 243 AD3d 950, 951 [internal quotation marks omitted];  see U.S. Bank Trust, N.A. v. Johnson, 201 AD3d 841, 842).  A party may establish that a motion was improperly served by proffering evidence that the motion papers were mailed to an incorrect address (see Gutierrez v. Hillside Hotel, LLC, 234 AD3d 672, 674;  Wilmington Sav. Fund Socy., FSB v Sheikh, 183 AD3d 783, 784).  Here, the plaintiff failed to establish that the plaintiff's counsel was not properly served with the defendants' motion to dismiss the complaint, as the plaintiff failed to proffer evidence that the motion papers were mailed to an incorrect address (see Gutierrez v. Hillside Hotel, LLC, 234 AD3d at 674).

Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 5015(a)(4) to vacate the August 2017 order.

The plaintiff's remaining contention is without merit.

GENOVESI, J.P., WAN, TAYLOR and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court