Carlo v. Carlo

Appellate Division of the Supreme Court of New York

Carlo v. Carlo

110 A.D.2d 806, 488 N.Y.S.2d 228, 1985 N.Y. App. Div. LEXIS 48712

Appellate Division of the Supreme Court of the State of New York·Decided April 22, 1985·Published·Cited by 2 cases

Opinion

Plaintiff moved to enforce a certain provision of a divorce decree, by order to show cause dated November 24,1981, which required service of a copy of said order to show cause and supporting papers to be made upon the defendant board at Two World Trade Center, New York, by certified mail, return receipt requested, on or before November 30, 1981. Upon review of the record, we disagree with Special Term’s determination that [807] “service as so directed appears to have been so effectuated” upon the board. Accordingly, we find that jurisdiction over the board was never properly obtained.

Moreover plaintiff failed to serve the Attorney-General, who represents the board, as required under CPLR 2214 (d). That defect is likewise jurisdictional (Randall v Toll, 72 Misc 2d 305).

In concluding, we note that the State Insurance Fund is the carrier liable for payment of the compensation benefits awarded to defendant Peter De Carlo, which are at issue in this proceeding. Although plaintiff seeks to recover payment of a portion of those benefits, she failed to join the State Insurance Fund as a party to this proceeding. Mollen, P. J., Titone, Thompson and Lawrence, JJ., concur.

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Plaintiff moved to enforce a certain provision of a divorce decree, by order to show cause dated November 24,1981, which required service of a copy of said order to show cause and supporting papers to be made upon the defendant board at Two World Trade Center, New York, by certified mail, return receipt requested, on or before November 30, 1981. Upon review of the record, we disagree with Special Term’s determination that [807] “service as so directed appears to have been so effectuated” upon the board. Accordingly, we find that jurisdiction over the board was never properly obtained.

Moreover plaintiff failed to serve the Attorney-General, who represents the board, as required under CPLR 2214 (d). That defect is likewise jurisdictional (Randall v Toll, 72 Misc 2d 305).

In concluding, we note that the State Insurance Fund is the carrier liable for payment of the compensation benefits awarded to defendant Peter De Carlo, which are at issue in this proceeding. Although plaintiff seeks to recover payment of a portion of those benefits, she failed to join the State Insurance Fund as a party to this proceeding. Mollen, P. J., Titone, Thompson and Lawrence, JJ., concur.

Carlo v. Carlo, 110 A.D.2d 806, 488 N.Y.S.2d 228, 1985 N.Y. App. Div. LEXIS 48712 (N.Y. Ct. App. 1985).

Pincite

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Opinion

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