Castillo-Florez v. Charlecius

220 A.D.3d 1

197 N.Y.S.3d 514

Carlos CASTILLO–FLOREZ, respondent,

v.Marceau CHARLECIUS, defendant,Metropolitan Transportation Authority, et al., appellants.

2020–03344

Index No. 707139/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 30, 2022

September 13, 2023

Armienti, DeBellis & Rhoden, LLP, New York, NY (Vanessa M. Corchia and Christopher M. Grimaldi of counsel), for appellants.

Goidel & Siegel, LLP, New York, NY (Stacy R. Klozow of counsel), for respondent.

COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.

OPINION & ORDER

WARHIT, J.

The principal question presented on this appeal is whether an individual defendant's failure to fulfill the statutory obligation to timely notify the New York State Department of Motor Vehicles (hereinafter DMV) of a change of address, standing alone, estops that defendant from contesting service of the summons and complaint made at his or her former address. We answer that question in the negative. For the reasons that follow, we hold that, while there are circumstances where a defendant may be estopped from contesting service of process based in part on the failure to update his or her address with the DMV, such as where the defendant engages in a deliberate attempt to avoid service, the mere failure to update one's address with the DMV, standing alone, does not automatically warrant application of the estoppel doctrine.

I. Relevant Facts

In April 2019, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in May 2018, when a bus operated by the defendant Marceau Charlecius struck him while he was crossing 102nd Street in Queens. The plaintiff alleged that the bus was owned by the defendants Metropolitan Transportation Authority, New York City Transit Authority, and Metropolitan Transportation Authority Bus Company, and that Charlecius was operating the bus within the scope of his employment with those defendants.

Charlecius allegedly was served with the summons and complaint on June 8, 2019, upon a person of suitable age and discretion pursuant to CPLR 308(2), but failed to answer the complaint or otherwise appear in the action. According to an affidavit of service, the plaintiff's process server effectuated service of the summons and complaint at an address in Farmingdale (hereinafter the Farmingdale address).

In December 2019, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against Charlecius upon his failure to appear or answer the complaint. The plaintiff asserted that Charlecius was served with the summons and complaint at the address maintained on file with the DMV. In support of his motion, the plaintiff submitted, among other things, the process server's affidavit and a "record expansion" from the DMV dated April 22, 2019, which indicated that Charlecius resided at the Farmingdale address.

In opposition to the motion, it was contended that Charlecius did not default in this action because he was never properly served with the summons and complaint. Although it was conceded that the plaintiff had satisfied his prima facie burden of demonstrating proper service through the submission of the process server's affidavit, it was argued that the presumption of proper service was rebutted through the submission of Charlecius's affidavit, in which he denied receipt of service and denied residing at the Farmingdale address at the time service allegedly was made.

In reply, the plaintiff argued that, even assuming Charlecius did not reside at the Farmingdale address at the time of service, estoppel precluded a challenge to service upon him, based upon Charlecius's failure to update his address with the DMV, as required by Vehicle and Traffic Law § 505(5).

In the order appealed from, the Supreme Court granted the plaintiff's motion for leave to enter a default judgment against Charlecius. The court determined that the plaintiff had submitted proof Charlecius was served with the summons and complaint pursuant to CPLR 308(2) at the Farmingdale address. The court held that, while Charlecius may not have resided at the Farmingdale address as of June 2019, service upon him at that address was nevertheless permissible because Charlecius had failed to update his mailing address with the DMV as required by Vehicle and Traffic Law § 505(5). Additionally, the court determined that Charlecius's failure to update his address with the DMV precluded a challenge to the diligence of the process server in ascertaining Charlecius's correct address.

II. Discussion

A. Background

To successfully oppose a facially adequate motion for leave to enter a default judgment, a defendant must show either that there was no default, or that there was a reasonable excuse for the delay and a potentially meritorious defense to the action (see Liberty County Mut. v. Avenue I Med., P.C., 129 A.D.3d 783, 785, 11 N.Y.S.3d 623 ; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 ). Here, the opposition to the plaintiff's motion for leave to enter a default judgment asserted solely that there was no default by Charlecius as he was never served with the summons and complaint.

It is axiomatic that a court lacks personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process (see Nationstar Mtge., LLC v. Esdelle, 186 A.D.3d 1384, 1386, 130 N.Y.S.3d 80 ; Krisilas v. Mount Sinai Hosp., 63 A.D.3d 887, 889, 882 N.Y.S.2d 186 ). "[S]ervice of process ... implicates due process requirements of notice and opportunity to be heard" ( Keane v. Kamin, 94 N.Y.2d 263, 265, 701 N.Y.S.2d 698, 723 N.E.2d 553 ). Service upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308 (see Everbank v. Kelly, 203 A.D.3d 138, 143, 163 N.Y.S.3d 88 ; Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 964 N.Y.S.2d 543 ). While there are few recognized exceptions to following the precise language of CPLR 308, there are circumstances in which a defendant may be estopped from challenging the location or propriety of service (see Everbank v. Kelly, 203 A.D.3d at 145, 163 N.Y.S.3d 88 ).

As this Court recently reiterated, "[e]stoppel, in this context, may preclude a defendant ‘from challenging the location and propriety of service of process if that defendant has engaged in affirmative conduct which misleads a party into serving process at an incorrect address’ " ( Hudson Val. Bank, N.A. v. Eagle Trading, 208 A.D.3d 648, 650, 173 N.Y.S.3d 613, quoting Everbank v. Kelly, 203 A.D.3d at 145, 163 N.Y.S.3d 88 ). This includes situations, for example, where a defendant willfully misrepresents his or her address, or engages in conduct calculated to prevent the plaintiff from learning his or her actual place of residence (see Feinstein v. Bergner, 48 N.Y.2d 234, 241, 422 N.Y.S.2d 356, 397 N.E.2d 1161 ; Hudson Val. Bank, N.A. v. Eagle Trading, 208 A.D.3d at 650, 173 N.Y.S.3d 613 ; Everbank v. Kelly, 203 A.D.3d at 145, 163 N.Y.S.3d 88 ; Bank of N.Y. v. MacPherson, 301 A.D.2d 485, 486, 752 N.Y.S.2d 720 ).

This Court has also applied estoppel in certain cases, often arising from motor vehicle accidents, precluding a defendant from contesting service at a former address where the defendant failed to fulfill the statutory obligation of timely notifying the DMV of an address change (see e.g. Everbank v. Kelly, 203 A.D.3d at 146, 163 N.Y.S.3d 88, citing, inter alia, Mighty v. Deshommes, 178 A.D.3d 912, 915, 115 N.Y.S.3d 454 ; Canelas v. Flores, 112 A.D.3d 871, 872, 977 N.Y.S.2d 362 ). That statutory obligation is set forth in the Vehicle and Traffic Law, including section 505(5), which provides that "[i]t shall be the duty of every licensee to notify the commissioner in writing of any change of residence of such licensee within ten days after such change occurs." Vehicle and Traffic Law § 401(3) similarly provides, in pertinent part, that "[i]t shall be the duty of every owner holding a certificate of registration to notify the commissioner in writing of any change of residence of such person within ten days after such change occurs." As noted above, the Supreme Court determined that estoppel precluded a challenge to service upon Charlecius at his former address based on his failure to comply with Vehicle and Traffic Law § 505(5).

On appeal, it is contended that an individual's failure to update his or her address with the DMV, by itself, is insufficient to warrant application of the estoppel doctrine, and this Court's precedent to the contrary is not consistent with that of the Court of Appeals. To address this contention, it is necessary to review the development of the case law in this area.

B. Feinstein & Cohen

The issue of whether a defendant may be prevented from contesting service of a summons and complaint at a former address based, in part, on the failure to update his or her address with the DMV was directly addressed in ( Cohen v. Arista Truck Renting Corp., 70 Misc.2d 729, 335 N.Y.S.2d 30 [Sup. Ct., Nassau County] ), which was decided in 1972. Cohen involved a personal injury action arising from an automobile accident. The Supreme Court determined that the defendant driver was estopped from challenging the propriety of service at his former address because he had given an incorrect address to the plaintiffs at the time of the accident, failed to file a motor vehicle accident report as required by the Vehicle and Traffic Law, and failed to notify the DMV of his change of address (see id. at 731, 335 N.Y.S.2d 30 ). Under those circumstances, the court reasoned that the defendant should "not benefit from his own misrepresentation and fraud" ( id. ). The court, "in the interest of justice," nevertheless afforded the defendant an opportunity to vacate his default and answer the complaint, provided he moved for such relief within a specified period of time ( id. ).

In 1979, the Court of Appeals, in ( Feinstein v. Bergner, 48...