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Hossain v. Fab Cab Corp.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 2, 2008

SHEIKH HOSSAIN, RESPONDENT,
v.
FAB CAB CORP., DEFENDANT,
YELLOW CAB SLS JET MANAGEMENT CORP., ET AL., APPELLANTS.

In an action to recover damages for personal injuries, the defendants Yellow Cab SLS Jet Management Corp. and Manhattan Maintenance Corp. appeal from an order of the Supreme Court, Queens County (Schulman, J.), entered January 30, 2008, which denied their motion pursuant to CPLR 317 and 5015 to vacate a judgment of the same court entered September 13, 2005, upon their default in answering the complaint, which was in favor of the plaintiff and against them in the principal sum of $100,000.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, WILLIAM E. McCARTHY and CHERYL E. CHAMBERS, JJ.

(Index No. 2800/03)

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and that branch of the appellants' motion which was pursuant to CPLR 5015(a)(4) to vacate the judgment entered September 13, 2005, is granted, and the remaining branches of the motion are denied as academic.

It is "'axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void'" (Elm Mgt. Corp. v Sprung, 33 AD3d 753, 755, quoting McMullen v Arnone, 79 AD2d 496, 499; Matter of Cartier v County of Nassau, 281 AD2d 477, 478). Under CPLR 5015(a)(4), a default judgment must be vacated once a movant demonstrates lack of personal jurisdiction (see Citibank v Keller, 133 AD2d 63, 64-65; see also Harkless v Reid, 23 AD3d 622, 622-623; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402). Here, the process server served the summons with notice upon a receptionist in the appellants' offices, and there is no evidence that she was an officer, director, managing agent, cashier, or an agent authorized by appointment to accept service on their behalf (see CPLR 311[a][1]; Gleizer v American Airlines, Inc., 30 AD3d 376). Accordingly, jurisdiction was never obtained over the appellants, and the Supreme Court should have granted that branch of their motion which was pursuant to CPLR 5015(a)(4) to vacate the default judgment.

RIVERA, J.P., FLORIO, ANGIOLILLO, McCARTHY and CHAMBERS, JJ., concur.

20081202

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