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ALVARADO v. AMERICAN FREIGHTWAYS

June 21, 2005.

JULIO S. ALVARADO and ANGELA ALVARADO, Plaintiffs,
v.
AMERICAN FREIGHTWAYS, INC. and ANGEL D. DIAZ, Defendants.



The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge

MEMORANDUM AND ORDER

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.

Background

  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. A).

  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.

  Discussion

  A. Service of Process

  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 states:
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 ...


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