Regina Di Marco, Appellant, v. PT II (2026)

ORDERED that the order is affirmed, without costs.

In this action, plaintiff seeks to recover the principal sum of $44,960, plus punitive damages, alleging that, in the course of work that P & T II Contracting Corp. (defendant), sued herein as PT II Contracting Corp., was doing for the City of New York, defendant damaged, and failed to properly repair, the water lines leading to plaintiff's home. An affidavit of attempted service shows that, on July 11, 2023, a sheriff made one unsuccessful effort to effect "personal service" on defendant. Thereafter, plaintiff's husband, Salvatore DiMarco, purportedly served defendant by affixing a copy of the summons with endorsed complaint to a steel fence at "Defendant's residence." Defendant defaulted in answering, an inquest was held (Ernest J. Cavallo, J.H.O.), and, on February 27, 2024, a judgment was entered which, insofar as is relevant to this appeal, was against defendant in the principal sum of $44,960.

On March 27, 2024, defendant moved to vacate the default judgment pursuant to CPLR 5015 (a) (1), (2), and (4), and CPLR 317, and sought restoration of the action, insofar as asserted against it, to the active calendar of the court. In supporting papers, defendant denied that it had been properly served. Plaintiff opposed defendant's motion. In an order dated September 5, 2024, the Civil Court (Michael H. Goldman, J.) granted defendant's motion and set a date certain for defendant to serve and file an answer. Plaintiff appeals from that order.

Service of the summons in the Civil Court is generally required to be "made in the manner prescribed in supreme court practice" (CCA 403; see Rodriguez v Rodriguez, 103 AD3d 117, 122 [2012]), and is a prerequisite to obtaining jurisdiction over a defendant (see Flatow v Goddess Sanctuary & Spa Corp., 233 AD3d 656, 658 [2024]). "A court lacks personal jurisdiction over a defendant who is not properly served with process" (Everbank v Kelly, 203 AD3d 138, 142 [2022]). Furthermore, " '[p]ersonal service on a corporation must be made to one of the persons authorized by the statute to accept service, and an attempt to serve such person by substitute service pursuant to CPLR 308 (2) or (4) will be insufficient to acquire jurisdiction over the corporation' " (Flatow v Goddess Sanctuary & Spa Corp., 233 AD3d at 658, quoting Finnegan v Trimarco, 173 AD3d 691, 693 [2019]). A plaintiff bears the ultimate burden of proving that jurisdiction was obtained over a defendant (see Sinay v Schwartzman, 148 AD3d 1068, 1069 [2017]).

Plaintiff neither alleged nor provided any documentation to demonstrate proper service upon any of the persons authorized by statute to accept service on behalf of defendant, which is a corporation (see CPLR 311 [a] [1]; Business Corporation Law § 306). In this circumstance, we conclude that the Civil Court did not improvidently exercise its discretion in granting defendant's motion, which sought (1) to vacate so much of the judgment as was against defendant based on a lack of jurisdiction, and (2) upon its implicit submission to the court's jurisdiction by virtue of its motion, to restore the action, insofar as asserted against defendant, to the active calendar.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 17, 2026