The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
FedEx Freight East, Inc. (formerly American Freightways, Inc.)
and Angel Diaz (the "defendants") move pursuant to Rule 12(b)(5)
of the Federal Rules of Civil Procedure to dismiss the complaint
filed by Julio and Angela Alvarado (the "plaintiffs" or the
"Alvarados") for insufficiency of service of process. Since the
plaintiffs would then be time-barred from refiling, the
defendants also seek to dismiss the complaint pursuant to Rule 4.
In the event that service is found to be inadequate, the
plaintiffs have cross-moved pursuant to Rule 4(m) for leave to
re-serve process. The parties have consented to my exercising
authority over this case for all purposes pursuant to
28 U.S.C. § 636(c). For the reasons set forth below, the plaintiffs'
cross-motion to re-serve is granted and defendants' motions to
dismiss are denied.
On August 31, 2001, Julio Alvarado was involved in a motor
vehicle accident with Angel Diaz in Mount Vernon, New York.
(Declaration of Elliot B. Pasik dated May 6, 2005 ("Pasik
Decl."), ¶ 3). The truck driven by Mr. Diaz was owned by American
Freightways. (Pasik Decl., ¶ 4).
On August 4, 2004, shortly before the expiration of New York's
three-year statute of limitations on personal injury actions, the
Alvarados filed a complaint against Mr. Diaz and American
Freightways in New York State Supreme Court, Bronx County,
alleging serious injuries and loss of companionship as a result
of the defendants' negligence. (Complaint, ¶¶ 13-14, 20). The
Alvarados then attempted to serve the defendants with a summons
and complaint pursuant to New York Vehicle and Traffic Law
("VTL") § 253 and New York Civil Practice Law and Rules ("CPLR")
§ 306-b which require notice be sent via certified or registered
mail and service be made within 120 days of filing. The plaintiff
must then file the return receipt or undelivered envelope within
30 days of its return. Under VTL § 253, service of process is
completed and the action is commenced when the receipt or
envelope is filed.
The plaintiffs mailed the summons and complaint to the
addresses listed for the defendants on a three-year-old police
accident report. (Plaintiff's Memorandum of Law in Opposition to
the Defendants' Motion and in Support of the Cross-Motion Seeking
Alternative Relief ("Pl. Memo.") at 3rd unnumbered page). These
addresses, however, were incorrect. (Affidavit of Abraham A.
Friedman dated March 28, 2005 ("Friedman Aff."), ¶¶ 9, 13). The
defendants claim that they never received these mailings and that
the plaintiffs did not properly file the undelivered envelopes.
(Friedman Aff., ¶¶ 9-10, 12, 14). The New York Department of
State has no record of service for this action. (Friedman Aff., Exh.
The defendants contend they only became aware of the complaint
on November 12, 2004, when a copy was sent to a law firm they had
retained to perform investigative work. (Friedman Aff., ¶ 11). On
November 19, 2004, shortly after the law firm forwarded the
complaint to FedEx Freight East, the defendants served their
Answer. (Reply Affidavit of Abraham A. Friedman dated May 13,
2005, ¶ 8). On December 6, 2004, the action was removed to
federal court. (Pl. Memo. at 2nd unnumbered page).
The defendants now move to dismiss, claiming that service of
process was insufficient and that the statute of limitations has
expired. In the event that service is found to be defective, the
plaintiffs cross-move for leave to re-serve the defendants.
Due process of law requires notice to "apprise interested
parties of the pendency of an action and [to] afford them an
opportunity to present their objections." Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citations
omitted). "It is fundamental that only compliance with statutory
preconditions to the exercise of personal jurisdiction . . . can
result in acquisition of such jurisdiction consistent with due
process requirements." Broughton v. Chrysler Corp.,
144 F.R.D. 23, 26 (W.D.N.Y. 1992) (citations omitted). Actual notice alone
does not constitute service or confer jurisdiction "when there
has not been compliance with prescribed conditions of service."
Buggs v. Ehrnschwender, 968 F.2d 1544, 1548 (2d Cir. 1992) (citation
omitted); see Markoff v. South Nassau Community Hospital,
61 N.Y.2d 283, 288, 473 N.Y.S.2d 766, 768 (1984).
In a removed case, the propriety of service must be determined
according to the law of the state from which the case was
removed. See Bomze v. Nardis Sportswear, 165 F.2d 33
, 35 (2d
Cir. 1948); Jones v. Globe International, Inc., Nos.
3:94:CV01468, 3:94:CV01511, 3:94:CV01512, 1995 WL 819177, at *4
(D. Conn. Sept. 26, 1995). Here, the plaintiffs chose to file
their claim in New York State Supreme Court and serve the
defendants pursuant to VTL § 253. Since VTL § 253 affords relief
that is in derogation of the common law, it is strictly
construed. See Bingham v. Ryder Truck Rental, Inc.,
110 A.D.2d 867, 869, 488 N.Y.S.2d 424, 426 (2d Dep't 1985). The law
The plaintiff shall file with the Clerk of the Court
in which the action is pending . . . an affidavit of
compliance herewith, a copy of the summons and
complaint, and either a return receipt purporting to
be signed by the defendant . . .; or, if acceptance
was refused . . ., the original envelope . . . and an
affidavit . . . that notice of such mailing and
refusal was forthwith sent to the defendant by
ordinary mail . . .; or, if the registered or
certified letter was returned to the post office
unclaimed, the original envelope[.]
VTL § 253.
The Alvarados filed their complaint with the Clerk on August 4,
2004. (Pasik Decl., ¶ 5). Then they mailed the summons and
complaint to the addresses listed on the police accident report
from three years earlier. (Pl. Memo. at 3rd unnumbered page). American Freightways has never occupied the address where its
copies of the documents were sent (Friedman Aff., ¶ 9), and Mr.
Diaz has not lived at the address where his copies were mailed
for over five years. (Friedman Aff., ¶ 13). Both defendants claim
they never received these mailings. (Friedman Aff., ¶¶ 10, 14).
There is no evidence on the record before this Court detailing
how American Freightways' return receipt or undelivered envelope
was handled. The plaintiffs claim to have appropriately filed the
envelope they sent to Mr. Diaz, which was ...