Murphy-Tarver v. Lester

23 A.D.3d 993, 803 N.Y.S.2d 450

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 2005
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered November 24, 2004 in a personal injury action. The order denied plaintiffs’ motion pursuant to CPLR 312-a (f) for an immediate judgment in the amount of, inter alia, the expense of serving defendants by an alternative method.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and as modified the order is affirmed with costs to plaintiffs, and judgment is ordered in accordance with the following memorandum: Plaintiffs commenced this negligence action by serving defendants by mail pursuant to CPLR 312-a (a). When “the acknowledgment of receipt” was not returned by defendants or the other persons set forth in CPLR 312-a (b) within the requisite 30-day period, plaintiffs utilized “an alternative method” of service of process and thereafter moved for an immediate judgment in the amount of, inter alia, the expense of serving defendants by that alternative method (CPLR 312-a [f]). Supreme Court erred in denying that part of plaintiffs’ motion seeking an immediate judgment in the amount of $47.13, i.e., the amount expended by plaintiffs in serving defendants by the alternative method of service of process (see Dazco Heating & A.C. Corp. v C.B.C. Indus., 225 AD2d 578, 579 [1996]; Kostelanetz & Fink v Hui Qun Zhao, 180 Misc 2d 847, 850 [1999]). Thus, we modify the order accordingly, and we order that judgment be entered in favor of plaintiffs and against defendants in that amount. We note that plaintiffs also sought as part of the immediate judgment the amount relating to the expenses of the motion herein, because the motion was necessitated by the service of process by an alternative method. The court properly denied that part of plaintiffs’ motion, however, inasmuch as there is no statutory authority for the inclusion of such expenses in the “immediate judgment” (CPLR 312-a [f]). Present—Pigott, Jr., P.J., Gorski, Martoche, Pine and Lawton, JJ.