Charles v Charles 2025 NY Slip Op 30982(U) March 25, 2025 Supreme Court, New York County Docket Number: Index No. 152532/2024 Judge: James G. Clynes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 03/27/2025 04:51 P~ INDEX NO. 152532/2024 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/27/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JAMES G. CLYNES PART 22 Justice ---------------------- ----------X INDEX NO. 152532/2024 TYSHIKA N. CHARLES, MOTION DATE 07/26/2024 Plaintiff, MOTION SEQ. NO. 001 - V-
AISHA A CHARLES, JAHMENA M. GREEN, PV HOLDING CORP. DECISION + ORDER ON MOTION Defendant. -------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23,24,25, 33, 34, 35, 36,37,38, 39,40,41,42,43 were read on this motion to/for DISMISS
Upon the foregoing documents, it is ordered that the motion by defendant Jahmena M.
Green (Green) pursuant to CPLR 3211 for an Order dismissing the Complaint against her for lack
of personal jurisdiction for failure to complete service upon Green within 120 days of the filing of
the summons and complaint and plaintiff's cross-motion pursuant to CPLR 306-b for an Order "to
effect service" are decided as set forth below.
Plaintiff seeks recovery for personal injury sustained as a result of an April 23, 2021 motor
vehicle accident involving a vehicle operated by defendant Aisha A. Charles in which plaintiff was
a passenger and a vehicle operated by Green and owned by PV Holding Corp.
Green contends that the Complaint must be dismissed against her for lack of personal
jurisdiction because plaintiff failed to properly effectuate service upon her pursuant to VTL 253,
in that plaintiff failed to file the required affidavit of compliance required under VTL 253. Plaintiff
opposes the motion and cross-moves for an Order allowing plaintiff an extension of the time to
comply with the filing requirements in the interest of justice and pursuant to CPLR 306-b.
Plaintiff commenced this action by summons and complaint filed on March 19, 2024.
15253212024 CHARLES, TYSHIKA N. vs. CHARLES, AISHA A. ET AL Page 1 of 5 Motion No. 001
1 of 5 [* 1] [FILED: NEW YORK COUNTY CLERK 03/27/2025 04:51 P~ INDEX NO. 152532/2024 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/27/2025
According to the complaint, plaintiff and defendant Charles are New York residents, Green
is a Pennsylvania resident and PV Holding Corp. is a foreign corporation doing business in New
York. On March 26, 2024, plaintiff filed an affidavit of service, dated March 25, 2024 in which
the process server averred that Green was served with the summons and verified complaint on
March 22, 2024, pursuant to Vehicle and Traffic Law 253 by delivering and leaving a true copy
or copies of the aforementioned documents with said NANCY DOUGHERTY, authorized agent
in the office of the Department of State, of the State of New York, personally at the office of the
Department of State, of the State of New York, one true copy thereof and that at the time of making
such service, deponent paid the Department of State a fee of $10.00. The process server also
averred that he completed service by depositing a true copy of each with notice of service, properly
sealed affixed with first class postage and addressed to the defendant in an official depository
under the exclusive care and custody of the U.S. Postal service. The envelope was marked personal
and confidential, and the mailing was made certified mail receipt number: 7022 1670 0003 1645
5649 with a return receipt requested. Mailed To: 1133 S. 60th ST, PHILADELPHIA, PA 19143.
On March 19, 2024 plaintiff commenced this action by filing the summons and complaint.
On March 26, 2024 plaintiff filed an affidavit of service dated March 25, 2024 in which
the process server avers that defendant Green was served through the Secretary of State pursuant
to VTL 253.
On July 1, 2024 Green filed an Amended Answer which included affirmative defenses
alleging Plaintiff failed to commence this action in accordance with the directives of Article 3 of
the CPLR (Ninth Affirmative Defense) and alleging lack of personal jurisdiction based upon
plaintiffs failure to effect service of the summons and complaint upon defendant Green (Fifteenth
Affirmative Defense).
CPLR 3211 (a) (8) provides that a party may move for judgment dismissing one or more
causes of action asserted against him on the ground that the court does not have jurisdiction over
the person of the Defendant. When a defendant objects to the court's exercise of personal
jurisdiction, the ultimate burden of proof rests upon the plaintiff (Lowy v Chalkable, LLC, 186
152532/2024 CHARLES, TYSHIKA N. vs. CHARLES, AISHA A. ET AL Page 2 of 5 Motion No. 001
2 of 5 [* 2] [FILED: NEW YORK COUNTY CLERK 03/27/2025 04:51 P~ INDEX NO. 152532/2024 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/27/2025
AD3d 590 [2d Dept 2020]). However, in opposing a motion to dismiss the complaint pursuant to
CPLR 3211 (a) (8) on the ground of lack of jurisdiction, a plaintiff need only make a prima facie
showing that such jurisdiction exists (Bangladesh Bank v Rizal Commercial Banking Corp., 226
AD3d 60 [1st Dept 2024]).
CPLR 306-b provides, in pertinent part, that service of the summons and complaint shall
be made within one hundred twenty days after commencement of the action and that if service is
not made upon a defendant within the time provided in this section, the court, upon motion, shall
dismiss the action without prejudice as to the defendant, or upon good cause shown or in the
interest of justice, extend the time for service (CPLR 306-b).
The "court lacks personal jurisdiction over a defendant who is not properly served with
process" (Palma v Apatow, 230 AD3d 1244, 1245 [2d Dept 2024] [citation omitted]). "When the
requirements for service of process have not been met, it is irrelevant that [a] defendant may have
actually received the documents" (Rasche! v Rish, 69 NY2d 694, 697 [1986]). Additionally, "the
fact that a defendant has received prompt notice of the action is of no moment" (Macchia v Russo,
67 NY2d 592, 595 [1986]). This is because"[n]otice received by means other than those authorized
by statute does not bring a defendant within the jurisdiction of the court" (id.). Thus, it is
immaterial that defendants here may have received the pleadings and/or had notice of the action.
Plaintiff, in opposing defendants' motion, "has the burden of presenting sufficient evidence,
through affidavits and relevant documents, to demonstrate that jurisdiction over the defendants is
warranted" (Bangladesh Bank v Rizal Commercial Banking Corp., 226 AD3d 60, 73-74 [1st Dept
2024]).
The affidavit of service states that service was made pursuant to VTL 253. VTL 253 sets
forth the service of process requirements for a New York resident's action against a nonresident,
arising from an "accident or collision in [New York] which such non-resident may be involved"
(VTL 253 [1]). It applies to this action as plaintiff alleges that she, a New York resident, and
defendant Green, a non-resident, were involved in a motor vehicle accident in New York.
Free access — add to your briefcase to read the full text and ask questions with AI
Charles v Charles 2025 NY Slip Op 30982(U) March 25, 2025 Supreme Court, New York County Docket Number: Index No. 152532/2024 Judge: James G. Clynes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 03/27/2025 04:51 P~ INDEX NO. 152532/2024 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/27/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JAMES G. CLYNES PART 22 Justice ---------------------- ----------X INDEX NO. 152532/2024 TYSHIKA N. CHARLES, MOTION DATE 07/26/2024 Plaintiff, MOTION SEQ. NO. 001 - V-
AISHA A CHARLES, JAHMENA M. GREEN, PV HOLDING CORP. DECISION + ORDER ON MOTION Defendant. -------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23,24,25, 33, 34, 35, 36,37,38, 39,40,41,42,43 were read on this motion to/for DISMISS
Upon the foregoing documents, it is ordered that the motion by defendant Jahmena M.
Green (Green) pursuant to CPLR 3211 for an Order dismissing the Complaint against her for lack
of personal jurisdiction for failure to complete service upon Green within 120 days of the filing of
the summons and complaint and plaintiff's cross-motion pursuant to CPLR 306-b for an Order "to
effect service" are decided as set forth below.
Plaintiff seeks recovery for personal injury sustained as a result of an April 23, 2021 motor
vehicle accident involving a vehicle operated by defendant Aisha A. Charles in which plaintiff was
a passenger and a vehicle operated by Green and owned by PV Holding Corp.
Green contends that the Complaint must be dismissed against her for lack of personal
jurisdiction because plaintiff failed to properly effectuate service upon her pursuant to VTL 253,
in that plaintiff failed to file the required affidavit of compliance required under VTL 253. Plaintiff
opposes the motion and cross-moves for an Order allowing plaintiff an extension of the time to
comply with the filing requirements in the interest of justice and pursuant to CPLR 306-b.
Plaintiff commenced this action by summons and complaint filed on March 19, 2024.
15253212024 CHARLES, TYSHIKA N. vs. CHARLES, AISHA A. ET AL Page 1 of 5 Motion No. 001
1 of 5 [* 1] [FILED: NEW YORK COUNTY CLERK 03/27/2025 04:51 P~ INDEX NO. 152532/2024 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/27/2025
According to the complaint, plaintiff and defendant Charles are New York residents, Green
is a Pennsylvania resident and PV Holding Corp. is a foreign corporation doing business in New
York. On March 26, 2024, plaintiff filed an affidavit of service, dated March 25, 2024 in which
the process server averred that Green was served with the summons and verified complaint on
March 22, 2024, pursuant to Vehicle and Traffic Law 253 by delivering and leaving a true copy
or copies of the aforementioned documents with said NANCY DOUGHERTY, authorized agent
in the office of the Department of State, of the State of New York, personally at the office of the
Department of State, of the State of New York, one true copy thereof and that at the time of making
such service, deponent paid the Department of State a fee of $10.00. The process server also
averred that he completed service by depositing a true copy of each with notice of service, properly
sealed affixed with first class postage and addressed to the defendant in an official depository
under the exclusive care and custody of the U.S. Postal service. The envelope was marked personal
and confidential, and the mailing was made certified mail receipt number: 7022 1670 0003 1645
5649 with a return receipt requested. Mailed To: 1133 S. 60th ST, PHILADELPHIA, PA 19143.
On March 19, 2024 plaintiff commenced this action by filing the summons and complaint.
On March 26, 2024 plaintiff filed an affidavit of service dated March 25, 2024 in which
the process server avers that defendant Green was served through the Secretary of State pursuant
to VTL 253.
On July 1, 2024 Green filed an Amended Answer which included affirmative defenses
alleging Plaintiff failed to commence this action in accordance with the directives of Article 3 of
the CPLR (Ninth Affirmative Defense) and alleging lack of personal jurisdiction based upon
plaintiffs failure to effect service of the summons and complaint upon defendant Green (Fifteenth
Affirmative Defense).
CPLR 3211 (a) (8) provides that a party may move for judgment dismissing one or more
causes of action asserted against him on the ground that the court does not have jurisdiction over
the person of the Defendant. When a defendant objects to the court's exercise of personal
jurisdiction, the ultimate burden of proof rests upon the plaintiff (Lowy v Chalkable, LLC, 186
152532/2024 CHARLES, TYSHIKA N. vs. CHARLES, AISHA A. ET AL Page 2 of 5 Motion No. 001
2 of 5 [* 2] [FILED: NEW YORK COUNTY CLERK 03/27/2025 04:51 P~ INDEX NO. 152532/2024 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/27/2025
AD3d 590 [2d Dept 2020]). However, in opposing a motion to dismiss the complaint pursuant to
CPLR 3211 (a) (8) on the ground of lack of jurisdiction, a plaintiff need only make a prima facie
showing that such jurisdiction exists (Bangladesh Bank v Rizal Commercial Banking Corp., 226
AD3d 60 [1st Dept 2024]).
CPLR 306-b provides, in pertinent part, that service of the summons and complaint shall
be made within one hundred twenty days after commencement of the action and that if service is
not made upon a defendant within the time provided in this section, the court, upon motion, shall
dismiss the action without prejudice as to the defendant, or upon good cause shown or in the
interest of justice, extend the time for service (CPLR 306-b).
The "court lacks personal jurisdiction over a defendant who is not properly served with
process" (Palma v Apatow, 230 AD3d 1244, 1245 [2d Dept 2024] [citation omitted]). "When the
requirements for service of process have not been met, it is irrelevant that [a] defendant may have
actually received the documents" (Rasche! v Rish, 69 NY2d 694, 697 [1986]). Additionally, "the
fact that a defendant has received prompt notice of the action is of no moment" (Macchia v Russo,
67 NY2d 592, 595 [1986]). This is because"[n]otice received by means other than those authorized
by statute does not bring a defendant within the jurisdiction of the court" (id.). Thus, it is
immaterial that defendants here may have received the pleadings and/or had notice of the action.
Plaintiff, in opposing defendants' motion, "has the burden of presenting sufficient evidence,
through affidavits and relevant documents, to demonstrate that jurisdiction over the defendants is
warranted" (Bangladesh Bank v Rizal Commercial Banking Corp., 226 AD3d 60, 73-74 [1st Dept
2024]).
The affidavit of service states that service was made pursuant to VTL 253. VTL 253 sets
forth the service of process requirements for a New York resident's action against a nonresident,
arising from an "accident or collision in [New York] which such non-resident may be involved"
(VTL 253 [1]). It applies to this action as plaintiff alleges that she, a New York resident, and
defendant Green, a non-resident, were involved in a motor vehicle accident in New York.
152532/2024 CHARLES, TYSHIKA N. vs. CHARLES, AISHA A. ET AL Page 3 of 5 Motion No. 001
3 of 5 [* 3] [FILED: NEW YORK COUNTY CLERK 03/27/2025 04:51 P~ INDEX NO. 152532/2024 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/27/2025
YTL 253 gives a plaintiff the option to use either registered or certified mail to send the
requisite documents to a defendant (YTL 253 [2]). The statute enumerates three items of available
proof that can be filed with an affidavit of compliance (id.). The first item is "a return receipt
purporting to be signed by defendant or a person qualified to receive his certified mail or registered
mail" (id.). The second item is "the original envelope bearing a notation by the postal authorities
that receipt was refused" (id.). The third item is "the original envelope bearing a notation by the
postal authorities" that the envelope was returned "unclaimed" (id.). Where a plaintiff receives
the original envelope bearing either postal service notation, plaintiff must promptly mail the
documents by regular mail (id.). For all three items, plaintiff must file a copy of the same with the
clerk of the court, together with an affidavit of compliance (id.). Also, if the original envelope
bears an "unclaimed" notation, plaintiff must provide the court with proof of the second mailing
by regular mail, i.e. a mailing certificate (id.). Plaintiff has 30 days to file the requisite papers after
receiving the signed return receipt or the marked original envelope (id.). Under YTL 253, service
of process is complete as soon as plaintiff files the requisite papers with the clerk of the court (id.).
Plaintiff did not meet the standard as to defendant Green because she did not file the requisite
certificate and did not provide any copies of original mailing envelopes bearing a postal notation
nor any signed return receipts, as required by statute. As such dismissal of the complaint against
defendant Green is warranted. The procedures set forth in YTL 253 are designed to satisfy the due
process requirements of actual notice, and plaintiff here did not demonstrate that such requirements
were satisfied.
Given the circumstances of this case, the court declines to exercise its discretion pursuant
to CPLR 306-b to extend plaintiffs time to properly serve defendant Green and plaintiffs cross-
motion is denied. Accordingly, it is
ORDERED that the motion of defendant Jahmena N. Green to dismiss the complaint herein
is granted and the complaint is dismissed in its entirety as against said defendant, and the Clerk is
directed to enter judgment accordingly in favor of said defendant; and it is further
152532/2024 CHARLES, TYSHIKA N. vs. CHARLES, AISHA A. ET AL Page 4 of 5 Motion No. 001
4 of 5 [* 4] [FILED: NEW YORK COUNTY CLERK 03/27/2025 04:51 P~ INDEX NO. 152532/2024 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/27/2025
ORDERED that the action is severed and continued against the remaining defendants; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers
filed with the court bear the amended caption; and it is further
ORDERED that within 30 days of entry counsel for the moving party shall serve a copy of
this order with notice of entry upon the Clerk of the Court and the Clerk of the General Clerk's
Office, who are directed to mark the court's records to reflect the change in the caption herein; and
it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on
Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-
Filing" page on the court's website).
This constitutes the Decision and Order of the Court.
3/25/2025 DATE JAMES G. CLYNES CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
152532/2024 CHARLES, TYSHIKA N. vs. CHARLES, AISHA A. ET AL Page 5 of 5 Motion No. 001
5 of 5 [* 5]