Pierce v. Village of Horseheads Police Department

Appeal from an order of the Supreme Court (O’Shea, J.), entered January 13, 2012 in Chemung County, which, among other things, denied a motion by defendants County of Chemung and Maggie Campanelli to dismiss the complaint against them.

Defendant Maggie Campanelli,^[1] who was a caseworker for the Chemung County Department of Social Services, accompanied police officers who entered plaintiffs home, conducted a search, discovered marihuana and arrested plaintiff. After the criminal charge against plaintiff was dismissed, she commenced this action against Campanelli, defendant Village of Horseheads Police Department and four of its officers, alleging a violation of plaintiffs 4th Amendment rights, pursuant to 42 USC § 1983 , and her state constitutional rights. A month later, plaintiff filed an amended summons and complaint that additionally named defendant County of Chemung. Campanelli and the County (hereinafter collectively referred to as defendants) moved to dismiss the complaint against them for lack of personal jurisdiction (see CPLR 3211 [a] [8]). Plaintiff opposed the motion, contending that defendants were properly served, but alternatively cross-moved for an extension of time to effect service (see CPLR 306-b) and to permit service on Campanelli via publica

Plaintiff failed to serve process on defendants in accordance with the CPLR.^[2] Because service of process is necessary to obtain personal jurisdiction over defendants, courts require strict compliance with the statutory methods of service. “[W]hen the requirements for service of process have not been met, it is irrelevant that [the] defendant may have actually received the documents, because notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court” (Clarke v Smith, 98 AD3d 756 , 756 [2012] [internal quotation marks and citations omitted]; see Raschel v Rish, 69 NY2d 694 , 697 [1986]; Macchia v Russo, 67 NY2d 592 , 595 [1986]; U.S. Bank Natl. Assn. v Vanvliet, 24 AD3d 906 , 907 [2005]). Plaintiff’s original summons and complaint did not include the County as a defendant; the County was named for the first time in the amended summons and complaint. Therefore, plaintiffs service of the original summons and complaint upon the part-time County Attorney was ineffective as to the County, as it was not yet a named party (see CPLR 305 [a] [requiring filing and service of supplemental summons on newly-joined party]).

Plaintiff also failed to properly effectuate service of the amended summons and complaint on the County. Personal service upon a county requires that the summons be personally delivered to “the chair or clerk of the board of supervisors, clerk, attorney or treasurer” (CPLR 311 [a] [4]). Plaintiff’s delivery of the amended documents to a secretary at the private law office where the County Attorney was also a partner was ineffective because the statute requires personal delivery to a listed representative of the County and does not provide for substituted service (see Lakeside Concrete Corp. v Pine Hollow Bldg. Corp., 104 AD2d 551 , 552 [1984], affd 65 NY2d 865 [1985]; see also Strong v Bi-Lo Wholesalers, 265 AD2d 745 , 745 [1999]; compare CPLR 311 [a] with CPLR 308).

Service on the County Attorney was also ineffective as to Campanelli because it did not comply with any of the methods

Contrary to plaintiffs arguments, CPLR 306-b does not obviate the need for proper service, but rather sets forth parameters for a court to grant an extension of time to effect service (see CPLR 306-b; see also Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 , 104-105 [2001]). Additionally, the failure to effect service here cannot be corrected pursuant to CPLR 2001; that statute was enacted to permit correction of technical mistakes or infirmities, but was not intended to allow courts to create jurisdiction where it otherwise does not exist (see Matter of Miller v Waters, 51 AD3d 113 , 117-118 [2008]; cf. Goldenberg v Westchester County Health Care Corp., 16 NY3d 323 , 327-328 [2011]; compare Johns v Van Brunt Motors, Inc., 89 AD3d 1188 , 1189-1190 [2011]). Indeed, the Court of Appeals has stated that “delivery of a summons and complaint to the wrong person is a substantial defect” that is not curable under CPLR 2001, rather than a technical error subject to being corrected or disregarded (Ruffin v Lion Corp., 15 NY3d 578 , 583 [2010] [citations omitted]). Hence, Supreme Court erred in declaring that the defective service was effective to confer jurisdiction over defendants and permitting the action to proceed against them without requiring proper service.

In view of the foregoing, we must address plaintiffs cross motion for an extension of time to effectuate proper service in order to confer personal jurisdiction over defendants.^[3] On a motion to dismiss based on lack of proper service, the court may, “upon good cause shown or in the interest of justice, extend the time for service” (CPLR 306-b). Whether to grant such an extension rests within the trial court’s discretion (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 101 ; Matter of

Here, plaintiffs attempts at service, though in error, did not show a particular lack of diligence. Although the statute of limitations had expired by the time of defendants’ motion and Supreme Court’s decision, it had not expired when service was first attempted (see Henneberry v Borstein, 91 AD3d 493 , 496 [2012]). Despite being aware of potential causes of action, plaintiff waited to commence this action until approximately 2^[3] /4 years had run of the three-year statute of limitations. Plaintiff also did not seek an extension of time for service until after defendants moved for dismissal.

Regarding prejudice, the County Attorney was aware of the action and has shown no prejudice due to the delay in service (see Wishni v Taylor, 75 AD3d at 749 ). On the other hand, although the County Attorney submitted an answer on Campanelli’s behalf raising the affirmative defense of improper service, the record contains no information that she has personally been informed that she is named in this action.^[4] In the cross motion, plaintiff sought, in the alternative, permission for service by publication due to her apparent inability to locate Campanelli. Under the circumstances, it is uncertain whether Campanelli would suffer any prejudice if late service is permitted.

The most significant factor here is whether the action is meritorious. Plaintiff’s motion papers do not expand upon the allegations in the complaint and do not demonstrate any merit to any of her causes of action concerning defendants. As to the cause of action pursuant to 42 USC § 1983 , plaintiff fails to allege that Campanelli was acting outside the scope of her employment as a child protective caseworker or that it was objectively unreasonable for her to believe that her actions in accompany

Considering all of the factors, but especially given the lack of merit of both causes of action against defendants, as well as the lack of notice and potential prejudice to Campanelli, an extension of time to effect service is not warranted in the interest of justice (see Matter of Richards v Office of the N.Y. State Comptroller, 88 AD3d at 1050 ; Hine v Bambara, 66 AD3d 1192 , 1193 [2009]; Maiuri v Pearlstein, 53 AD3d 816 , 817 [2008]; Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810 , 812 [2008], lv denied 11 NY3d 709 [2008]).^[5] Accordingly, the cross motion should have been denied on the merits and defendants’ motion should have been granted.

Lahtinen, J.P., Spain and Egan Jr., JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied the motion by defendants County of Chemung and Maggie Campanelli to dismiss the complaint against them; motion granted; and, as so modified, affirmed.