Vargas v. State

95 A.D.3d 588, 943 N.Y.S.2d 533

Opinion

Proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Robert E. Torres, J.], entered September 26, 2011), seeking to annul a determination of respondent New York State Department of Motor Vehicles (DMV), dated January 28, 2011, which, after a hearing, affirmed petitioner’s traffic conviction and imposed a fine of $130, unanimously dismissed, without costs.

Upon exercising our power to review Supreme Court’s order denying respondents’ cross motion to dismiss this proceeding on procedural grounds (see CPLR 7804 [g]; Matter of Wittie v State of N.Y. Off. of Children & Family Servs., 55 AD3d 842, 843 [2008]; Matter of Desmone v Blum, 99 AD2d 170, 177 [1984]), we find that respondent’s cross motion should have been granted. It is undisputed that petitioner never served the notice of petition and petition upon respondent DMV’s chief executive officer or a person designated by the chief executive officer to receive service (CPLR 307 [2]). DMV’s receipt of the notice of petition and petition from the Attorney General’s office did not provide personal jurisdiction over the DMV (see Matter of Lowney v New York State Div. of Human Rights, 68 AD3d 551, 551 [2009]). Further, respondent State of New York is not a proper party to this proceeding since it is not a “body or officer” within the meaning of CPLR 7802 (a) (see Kirk v Department of Motor Vehs., 22 AD3d 240, 241 [2005]). Were we to address the merits of the petition, we would find that substantial evidence supports the DMV’s determination. Concur — Friedman, J.P., Sweeny, DeGrasse, Abdus-Salaam and Román, JJ.