Gray-Joseph v. Shuhai Liu

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Docket Number

Judges

William F. Mastro
Ruth C. Balkin
Cheryl E. Chambers
Sandra Sgroi

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Smart Summary

Factual and Procedural Background

This appeal arises from an action to recover damages for personal injuries. The plaintiff moved for leave to enter default judgments against defendants William Yip and Shuhai Liu due to their failure to appear or answer the complaint. The Supreme Court, Suffolk County, granted the plaintiff's motion as to Yip and denied the defendants' cross motion to dismiss the complaint against Yip for lack of personal jurisdiction. Regarding Liu, the court directed a hearing to determine the validity of service of process to aid in deciding the plaintiff's motion for leave to enter a default judgment against Liu and the defendants' cross motion to dismiss for lack of personal jurisdiction.

Legal Issues Presented

Whether the service of process upon defendant Shuhai Liu was valid under CPLR 308(2), thereby conferring personal jurisdiction.
Whether the plaintiff was entitled to leave to enter a default judgment against defendant William Yip upon his failure to appear or answer.
Whether the defendants' cross motions to dismiss the complaint for lack of personal jurisdiction against Liu and Yip should be granted.

Arguments of the Parties

Plaintiff's Arguments

Service of process on Liu complied with CPLR 308(2) by delivery to a person of suitable age and discretion at Liu's dwelling place and mailing to his last known residence, justifying personal jurisdiction.
The plaintiff's process server affidavit constituted prima facie evidence of proper service on Yip under CPLR 308(4), supporting entry of default judgment due to Yip’s failure to appear.

Defendants' Arguments

Challenged the validity of service on Liu, arguing lack of personal jurisdiction due to improper service.
Moved to dismiss the complaint against Yip for lack of personal jurisdiction.
Submitted affidavits and evidence, including Liu's affidavit and a letter from a nonparty, contesting proper service and jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ludmer v. Hasan, 33 A.D.3d 594, 821 N.Y.S.2d 661	Strict compliance required for service under CPLR 308(2); minor mailing errors do not void service if summons is virtually certain to arrive.	Used to determine that factual issues existed regarding delivery and mailing of summons to Liu, justifying a hearing.
McCray v. Petrini, 212 A.D.2d 676, 622 N.Y.S.2d 815	Strict compliance with CPLR 308(2) for service of process.	Supported the legal standard for service of process on Liu.
Avakian v. De Los Santos, 183 A.D.2d 687, 583 N.Y.S.2d 275	Strict compliance with CPLR 308(2) necessary for jurisdiction.	Reinforced the requirement for proper service to establish jurisdiction over Liu.
Brownell v. Feingold, 82 A.D.2d 844, 440 N.Y.S.2d 57	Minor errors in mailing address do not invalidate service if summons will virtually certainly arrive.	Applied to assess the impact of the missing apartment number in mailing to Liu.
Donohue v. La Pierre, 99 A.D.2d 570, 471 N.Y.S.2d 396	Minor mailing errors do not void service if summons is likely to reach defendant.	Considered in evaluating service validity on Liu despite address omissions.
City of New York v. Miller, 72 A.D.3d 726, 898 N.Y.S.2d 643	Affidavit of process server constitutes prima facie evidence of proper service under CPLR 308(4).	Supported the court’s finding that service on Yip was proper, justifying default judgment.
Argent Mtge. Co., LLC v. Vlahos, 66 A.D.3d 721, 887 N.Y.S.2d 225	Prima facie proof of service by process server affidavit.	Reinforced the sufficiency of plaintiff’s proof of service on Yip.
425 E. 26th St. Owners Corp. v. Beaton, 50 A.D.3d 845, 858 N.Y.S.2d 188	Affidavit of service by process server as prima facie evidence.	Supported the court’s conclusion on proper service of process on Yip.
Sturino v. Nino Tripicchio & Son Landscaping, 65 A.D.3d 1327, 885 N.Y.S.2d 625	Requirement for personally sworn denial of service to rebut prima facie evidence.	Defendants’ failure to provide such denial weighed against dismissal of complaint as to Yip.
Olesniewicz v. Khan, 8 A.D.3d 354, 777 N.Y.S.2d 705	Affidavits and letters from nonparties insufficient to rebut proper service.	Applied to reject defendants’ evidence contesting service on Yip.
Simonds v. Grobman, 277 A.D.2d 369, 716 N.Y.S.2d 692	Same as Olesniewicz regarding insufficiency of evidence to rebut service.	Supported denial of defendants’ motion to dismiss for lack of jurisdiction as to Yip.
Walkes v. Benoit, 257 A.D.2d 508, 684 N.Y.S.2d 533	Requirement for sworn denial of service to rebut affidavit of service.	Further supported court’s decision to deny dismissal against Yip.

Court's Reasoning and Analysis

The court analyzed the validity of service of process on defendant Shuhai Liu under CPLR 308(2), which requires delivery to a person of suitable age and discretion at the defendant’s actual place of business, dwelling, or usual abode, and mailing to the defendant’s last known residence or place of business. The court recognized that strict compliance with both delivery and mailing is necessary to establish jurisdiction. However, it acknowledged that minor errors in the mailing address do not void service if it is virtually certain the summons will reach the defendant.

Because conflicting affidavits were presented—plaintiff’s process server claimed proper delivery and mailing, while Liu’s affidavits disputed these facts—the court found issues of fact that warranted a hearing to resolve the validity of service and thus the question of personal jurisdiction over Liu.

Regarding defendant William Yip, the court found that the plaintiff’s process server affidavit provided prima facie evidence of proper service under CPLR 308(4). The defendants failed to submit a sworn denial of service by Yip, and the affidavits and letter submitted by defendants were insufficient to rebut the plaintiff’s showing. Consequently, the court properly granted leave to enter a default judgment against Yip and denied the defendants’ motion to dismiss for lack of personal jurisdiction.

Holding and Implications

The court affirmed the Supreme Court’s order without costs or disbursements.

The holding confirms that a hearing is appropriate to resolve factual disputes regarding the validity of service of process under CPLR 308(2), thereby affecting personal jurisdiction determinations. It also underscores that prima facie proof of service via process server affidavit is sufficient to support default judgments absent a sworn denial. The decision directly affects the parties by allowing the default judgment against Yip and requiring further proceedings regarding service on Liu. No new legal precedent was established beyond the application of existing CPLR standards.

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Verla GRAY–JOSEPH, respondent, v. SHUHAI LIU, et al., appellants.

Cheven Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for appellants.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Whelan, J.), dated April 21, 2011, which granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant William Yip, upon that defendant's failure to appear or answer the complaint, denied that branch of their cross motion which was to dismiss the complaint insofar as asserted against that defendant for lack of personal jurisdiction, and directed a hearing to determine the validity of service of process upon the defendant Shuhai Liu to aid in the disposition of that branch of the plaintiff's motion which was for leave to enter a default judgment against that defendant, upon his failure to appear or answer the complaint, and that branch of their cross motion which was to dismiss the complaint insofar as asserted against that defendant for lack of personal jurisdiction.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as directed a hearing to determine the validity of service of process upon the defendant Shuhai Liu is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted ( see CPLR 5701 [c] ); and it is further,

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court properly directed a hearing to determine the validity of service of process upon the defendant Shuhai Liu to aid in the disposition of that branch of the plaintiff's motion which was for leave to enter a default judgment against Liu, upon his failure to appear or answer the complaint, and that branch of the defendants' cross motion which was to dismiss the complaint insofar as asserted against Liu for lack of personal jurisdiction. CPLR 308(2) authorizes service of process to be made by delivery to a person of suitable age and discretion at the defendant's actual place of business, dwelling place, or usual place of abode, and by mailing process to the defendant at either his or her last known residence or actual place of business. Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with ( see Ludmer v. Hasan, 33 A.D.3d 594, 821 N.Y.S.2d 661; McCray v. Petrini, 212 A.D.2d 676, 622 N.Y.S.2d 815; Avakian v. De Los Santos, 183 A.D.2d 687, 688, 583 N.Y.S.2d 275). However, a minor error in the address to which a summons is mailed will not render service of process void where “it is virtually certain that the summons will arrive” at its intended destination ( Brownell v. Feingold, 82 A.D.2d 844, 844, 440 N.Y.S.2d 57; see Ludmer v. Hasan, 33 A.D.3d 594, 821 N.Y.S.2d 661; Donohue v. La Pierre, 99 A.D.2d 570, 471 N.Y.S.2d 396). Here, the affidavits of the plaintiff's process server submitted in support of the plaintiff's motion, and Liu's affidavits, submitted in opposition to the motion and in support of the defendants' cross motion, raised issues of fact as to whether the process server delivered the summons and complaint to a person of suitable age and discretion at Liu's dwelling place and whether the envelope in which the summons and complaint were mailed, despite the failure to specify the apartment number, was virtually certain to arrive at Liu's last known residence ( see Ludmer v. Hasan, 33 A.D.3d 594, 821 N.Y.S.2d 661; Donohue v. La Pierre, 99 A.D.2d 570, 471 N.Y.S.2d 396; Brownell v. Feingold, 82 A.D.2d 844, 440 N.Y.S.2d 57).

Furthermore, the Supreme Court properly granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant William Yip upon his failure to appear or answer the complaint, and properly denied that branch of the defendants' cross motion which was to dismiss the complaint insofar as asserted against Yip for lack of personal jurisdiction. The process server's affidavit constituted prima facie evidence of proper service pursuant to CPLR 308(4) ( see City of New York v. Miller, 72 A.D.3d 726, 727, 898 N.Y.S.2d 643; Argent Mtge. Co., LLC v. Vlahos, 66 A.D.3d 721, 887 N.Y.S.2d 225; 425 E. 26th St. Owners Corp. v. Beaton, 50 A.D.3d 845, 846, 858 N.Y.S.2d 188). The defendants failed to submit a personally sworn denial of service by Yip ( see Sturino v. Nino Tripicchio & Son Landscaping, 65 A.D.3d 1327, 885 N.Y.S.2d 625; Olesniewicz v. Khan, 8 A.D.3d 354, 355, 777 N.Y.S.2d 705; Simonds v. Grobman, 277 A.D.2d 369, 370, 716 N.Y.S.2d 692; Walkes v. Benoit, 257 A.D.2d 508, 684 N.Y.S.2d 533). Moreover, the affidavit of Liu and a letter from Tommy Youn, a nonparty, were insufficient to rebut the plaintiff's showing ( see Olesniewicz v. Khan, 8 A.D.3d at 355, 777 N.Y.S.2d 705; Simonds v. Grobman, 277 A.D.2d at 370, 716 N.Y.S.2d 692).

MASTRO, A.P.J., BALKIN, CHAMBERS and SGROI, JJ., concur.