Preview
FILED: BROOME COUNTY CLERK 03/21/2022 03:50 PM INDEX NO. EFCA2022000255
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/21/2022
STATE OF NEW YORK
SUPREME COURT : COUNTY OF BROOME
________________________________________
THOMAS PILKINGTON,
Petitioner, AFFIRMATION IN SUPPORT
OF MOTION TO DISMISS
vs.
Index No. EFCA2022000255
NEW YORK STATE DEPARTMENT OF Hon. Jeffrey A. Tait
MOTOR VEHICLES
Respondent,
For a Judgment Pursuant to Article 78 of the
Civil Practice Law and Rules.
________________________________________
AARON J. MARCUS, an attorney duly admitted to practice law in the Courts of the State of New
York, under the penalty of perjury, affirms and states the following:
1. I am an Assistant Attorney General, in the Office of the Attorney General for the
State of New York, attorney for the respondent, New York State Department of Motor Vehicles
[“DMV”].
2. By the attached motion, the respondent moves this court to dismiss the instant
action pursuant to CPLR §§ 403, 7804(c), 307, and 3211(a)(8), as respondent has not been served
with a petition, and the time for doing so has since passed. This Motion to Dismiss is submitted in
lieu of a Verified Answer, in accordance with CPLR § 7804(e).
3. Filed herewith is an affirmation from James M. Passineau, Esq., an Assistant
Counsel for the DMV. See ‘Affirmation of James M. Passineau, Esq.’ [“Passineau Affirmation”]
Therein, Assistant Counsel Passineau explains that an investigation was conducted with respect to
service of the ‘Notice of Petition for Relief Pursuant to Article 78’ and ‘Verified Petition’ upon
the DMV. See Passineau Affirmation, ¶3.
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4. Pursuant to CPLR § 7804(c),
“…a notice of petition, together with the petition and affidavits specified in
the notice, shall be served on any adverse party at least twenty days before
the time at which the petition is noticed to be heard. […] In the case of a
proceeding pursuant to this article against a state body or officers […]
commenced either by order to show cause or notice of petition, in addition
to the service thereof provided in this section, the order to show cause or
notice of petition must be served upon the attorney general by delivery of
such order or notice to an assistant attorney general at an office of the
attorney general in the county in which venue of the proceeding is
designated, or if there is no office of the attorney general within such
county, at the office of the attorney general nearest such county.”
5. Pursuant to CPLR § 403(c),
“[a] notice of petition shall be served in the same manner as a summons in an
action.”
6. Pursuant to CPLR § 307(1),
“[p]ersonal service upon the state shall be made by delivering the summons
to an assistant attorney-general at an office of the attorney-general or to the
attorney-general within the state.”
7. Lastly, pursuant to CPLR § 307(2),
“[p]ersonal service on a state officer sued solely in an official capacity or
state agency, which shall be required to obtain personal jurisdiction over
such an officer or agency, shall be made by (1) delivering the summons to
such officer or to the chief executive officer of such agency or to a person
designated by such chief executive officer to receive service, or (2) by
mailing the summons by certified mail, return receipt requested, to such
officer or to the chief executive officer of such agency, and by personal
service upon the state in the manner provided by subdivision one of this
section. Service by certified mail shall not be complete until the summons
is received in a principal office of the agency and until personal service
upon the state in the manner provided by subdivision one of this section is
completed. For purposes of this subdivision, the term “principal office of
the agency” shall mean the location at which the office of the chief
executive officer of the agency is generally located. Service by certified
mail shall not be effective unless the front of the envelope bears the legend
"URGENT LEGAL MAIL" in capital letters. The chief executive officer of
every such agency shall designate at least one person, in addition to himself
or herself, to accept personal service on behalf of the agency. For purposes
of this subdivision the term state agency shall be deemed to refer to any
agency, board, bureau, commission, division, tribunal or other entity which
constitutes the state for purposes of service under subdivision one of this
section.”
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8. As of the date of Attorney Passineau’s affirmation, March 15, 2022, petitioner had
failed to serve DMV with the ‘Notice of Petition for Relief Pursuant to Article 78’ and ‘Verified
Petition’. See Passineau Affirmation, ¶4.
9. Because he has failed to serve the Verified Petition upon the respondent in
accordance with the above-referenced statutes, it is submitted that petitioner lacks personal
jurisdiction over the respondent, and the Petition should be dismissed under CPLR 3211(a)(8). See
Matter of Wittie v. State of New York Office of Children & Family Services, 55 A.D.3d 842 (2d
Dept. 2008).
10. The petition herein challenges the DMV’s Administrative Appeals Board Decision
of Appeal, decided on October 26, 2021, and mailed to the petitioner on October 29, 2021. A copy
of this Decision of Appeal has been filed herewith as Respondent’s Exhibit 1. The Decision of
Appeal represented the DMV’s final determination.
11. A petition such as the one filed in this matter must be commenced within four
months of a final determination (Walton v. New York State Dept. of Correctional Services, 8 NY3d
186, 195 (2007); CPLR § 217) and “where the applicable statute of limitations is four months or
less, service shall be made not later than fifteen days after the date on which the applicable statute
of limitations expires.” See CPLR § 306-b.
12. While the matter appears to have been commenced in a timely manner (see CPLR
§ 217; General Construction Law § 30; Matter of Richardson v. New York City Housing Authority,
89 AD3d 1091 (2d Dept. 2011)), it is submitted that complete service has yet to be made and that
the time for such service has now passed.
13. Were the petitioner to seek an extension of time to serve, as set forth in CPLR §
306-b, such may only be granted upon good cause shown or in the interest of justice.
14. “A plaintiff seeking to extend the time to serve upon good cause shown, must
demonstrate that the delay in serving occurred despite an exercise of due diligence. Generally, an
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exercise of reasonable diligence in attempting to effectuate service will constitute good cause
statute."
under the Toyota Motor Credit Corp. v. Adorno, 62 Misc.3d 944, 946 (Civ. Ct. of City
N.Y. 2019)(citing Leader v. Maroney, 97 N.Y.2d 95, 105 [2001]). Generally, this is where the
party seeking an extension for service cannot locate the other party with several attempts of service
and demonstrated substantial efforts to locate and serve. Bank v. Estate of Robinson, 144 A.D.3d
1084 (2d Dept. 2016).
15. In this case, it doesn't appear that the petitioner made any attempt to serve the state
agency. Clearly, this would not constitute good cause for purposes of CPLR § 306-b. See Toyota
Motor Credit Corp. v. Adorno, 62 Misc.3d at 947 (citing Leader v. Maroney, 97 N.Y.2d at 102).
16. Additionally, under the interest of justice provision, the court can accommodate
late service due to mistake, confusion, or oversight. Id. at 948. However, in this matter, it does not
appear that mistake, confusion, or oversight factor into the analysis; rather, the petitioner simply
failed to even attempt service upon the agency. The record before the Court fails to disclose any
justice"
basis for invoking the "interest of exception under CLS CPLR § 306-b. Aubin v State, 282
A.D.2d 919 (3d Dept. 2001), app. denied, 97 N.Y.2d 606 (2001).
WHEREFORE, respondent requests judgment dismissing the Petition, and granting such
other and further relief as the Court deems just and proper. In the altemative, if the motion to
dismiss is not granted, the respondent would request leave to file and serve a Verified Answer and
Return within thirty (30) days of the decision on the instant motion.
DATED: March 21, 2022
Binghamton, New York
LETITIA JAMES
Attorney e Aaron %¶t"12",*f.
Date- 2022.03.21
Marcus 3moo.
By: ,s
AARON J. MARÖU
Assistant Attorney General
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FILED: BROOME COUNTY CLERK 03/21/2022 03:50 PM INDEX NO. EFCA2022000255
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/21/2022
State of New York
Office of the Attorney General
State Office Building
44 Hawley Street, 17th Fl.
Binghamton, New York 13901-4433
Telephone: (607) 251-2770
TO: Andrew R. Petroski, Esq. (via e-filing)
Garufi Law P.C.
68 Oak Street
Binghamton, NY 13905
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FILED: BROOME COUNTY CLERK 03/21/2022 03:50 PM INDEX NO. EFCA2022000255
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/21/2022
VERIFICATION
AARON J. MARCUS, an attorney duly admitted to practice in the State of New York,
affirms, under penalty of perjury, the following:
I am an Assistant Attorney General in the Office of Letitia James, Attorney General of the
State of New York and attorney for Respondent.
I have been assigned to defend the within Petition, and I am acquainted with the facts and
circumstances thereof. I have prepared and read the annexed Affirmation and know the contents
thereof; that the same is true of my knowledge, except as to those matters therein stated to be
alleged on information and belief, and that as to those matters, I believe them to be true.
The source of my information and the grounds of my belief of the allegations contained in
the Affinnation herein are derived from my investigation of the facts in this action, along with an
examination of the file herein.
This verification is made by me, pursuant to CPLR § 3020(d)(2), because respondent is a
State Agency of the State of New York, and I am acquainted with the facts of this action.
DATED: March 21, 2022
Binghamton, New York Aaron !97151"f,
Date: 2022.03.21
arCUS 1s:osw-osoo·
AÃRON J. MAR
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Preview
FILED: BROOME COUNTY CLERK 03/21/2022 03:50 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/21/2022 STATE OF NEW YORK SUPREME COURT : COUNTY OF BROOME ________________________________________ THOMAS PILKINGTON, Petitioner, AFFIRMATION IN SUPPORT OF MOTION TO DISMISS vs. Index No. EFCA2022000255 NEW YORK STATE DEPARTMENT OF Hon. Jeffrey A. Tait MOTOR VEHICLES Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. ________________________________________ AARON J. MARCUS, an attorney duly admitted to practice law in the Courts of the State of New York, under the penalty of perjury, affirms and states the following: 1. I am an Assistant Attorney General, in the Office of the Attorney General for the State of New York, attorney for the respondent, New York State Department of Motor Vehicles [“DMV”]. 2. By the attached motion, the respondent moves this court to dismiss the instant action pursuant to CPLR §§ 403, 7804(c), 307, and 3211(a)(8), as respondent has not been served with a petition, and the time for doing so has since passed. This Motion to Dismiss is submitted in lieu of a Verified Answer, in accordance with CPLR § 7804(e). 3. Filed herewith is an affirmation from James M. Passineau, Esq., an Assistant Counsel for the DMV. See ‘Affirmation of James M. Passineau, Esq.’ [“Passineau Affirmation”] Therein, Assistant Counsel Passineau explains that an investigation was conducted with respect to service of the ‘Notice of Petition for Relief Pursuant to Article 78’ and ‘Verified Petition’ upon the DMV. See Passineau Affirmation, ¶3. 1 of 6 FILED: BROOME COUNTY CLERK 03/21/2022 03:50 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/21/2022 4. Pursuant to CPLR § 7804(c), “…a notice of petition, together with the petition and affidavits specified in the notice, shall be served on any adverse party at least twenty days before the time at which the petition is noticed to be heard. […] In the case of a proceeding pursuant to this article against a state body or officers […] commenced either by order to show cause or notice of petition, in addition to the service thereof provided in this section, the order to show cause or notice of petition must be served upon the attorney general by delivery of such order or notice to an assistant attorney general at an office of the attorney general in the county in which venue of the proceeding is designated, or if there is no office of the attorney general within such county, at the office of the attorney general nearest such county.” 5. Pursuant to CPLR § 403(c), “[a] notice of petition shall be served in the same manner as a summons in an action.” 6. Pursuant to CPLR § 307(1), “[p]ersonal service upon the state shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state.” 7. Lastly, pursuant to CPLR § 307(2), “[p]ersonal service on a state officer sued solely in an official capacity or state agency, which shall be required to obtain personal jurisdiction over such an officer or agency, shall be made by (1) delivering the summons to such officer or to the chief executive officer of such agency or to a person designated by such chief executive officer to receive service, or (2) by mailing the summons by certified mail, return receipt requested, to such officer or to the chief executive officer of such agency, and by personal service upon the state in the manner provided by subdivision one of this section. Service by certified mail shall not be complete until the summons is received in a principal office of the agency and until personal service upon the state in the manner provided by subdivision one of this section is completed. For purposes of this subdivision, the term “principal office of the agency” shall mean the location at which the office of the chief executive officer of the agency is generally located. Service by certified mail shall not be effective unless the front of the envelope bears the legend "URGENT LEGAL MAIL" in capital letters. The chief executive officer of every such agency shall designate at least one person, in addition to himself or herself, to accept personal service on behalf of the agency. For purposes of this subdivision the term state agency shall be deemed to refer to any agency, board, bureau, commission, division, tribunal or other entity which constitutes the state for purposes of service under subdivision one of this section.” 2 of 6 FILED: BROOME COUNTY CLERK 03/21/2022 03:50 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/21/2022 8. As of the date of Attorney Passineau’s affirmation, March 15, 2022, petitioner had failed to serve DMV with the ‘Notice of Petition for Relief Pursuant to Article 78’ and ‘Verified Petition’. See Passineau Affirmation, ¶4. 9. Because he has failed to serve the Verified Petition upon the respondent in accordance with the above-referenced statutes, it is submitted that petitioner lacks personal jurisdiction over the respondent, and the Petition should be dismissed under CPLR 3211(a)(8). See Matter of Wittie v. State of New York Office of Children & Family Services, 55 A.D.3d 842 (2d Dept. 2008). 10. The petition herein challenges the DMV’s Administrative Appeals Board Decision of Appeal, decided on October 26, 2021, and mailed to the petitioner on October 29, 2021. A copy of this Decision of Appeal has been filed herewith as Respondent’s Exhibit 1. The Decision of Appeal represented the DMV’s final determination. 11. A petition such as the one filed in this matter must be commenced within four months of a final determination (Walton v. New York State Dept. of Correctional Services, 8 NY3d 186, 195 (2007); CPLR § 217) and “where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires.” See CPLR § 306-b. 12. While the matter appears to have been commenced in a timely manner (see CPLR § 217; General Construction Law § 30; Matter of Richardson v. New York City Housing Authority, 89 AD3d 1091 (2d Dept. 2011)), it is submitted that complete service has yet to be made and that the time for such service has now passed. 13. Were the petitioner to seek an extension of time to serve, as set forth in CPLR § 306-b, such may only be granted upon good cause shown or in the interest of justice. 14. “A plaintiff seeking to extend the time to serve upon good cause shown, must demonstrate that the delay in serving occurred despite an exercise of due diligence. Generally, an 3 of 6 FILED: BROOME COUNTY CLERK 03/21/2022 03:50 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/21/2022 exercise of reasonable diligence in attempting to effectuate service will constitute good cause statute." under the Toyota Motor Credit Corp. v. Adorno, 62 Misc.3d 944, 946 (Civ. Ct. of City N.Y. 2019)(citing Leader v. Maroney, 97 N.Y.2d 95, 105 [2001]). Generally, this is where the party seeking an extension for service cannot locate the other party with several attempts of service and demonstrated substantial efforts to locate and serve. Bank v. Estate of Robinson, 144 A.D.3d 1084 (2d Dept. 2016). 15. In this case, it doesn't appear that the petitioner made any attempt to serve the state agency. Clearly, this would not constitute good cause for purposes of CPLR § 306-b. See Toyota Motor Credit Corp. v. Adorno, 62 Misc.3d at 947 (citing Leader v. Maroney, 97 N.Y.2d at 102). 16. Additionally, under the interest of justice provision, the court can accommodate late service due to mistake, confusion, or oversight. Id. at 948. However, in this matter, it does not appear that mistake, confusion, or oversight factor into the analysis; rather, the petitioner simply failed to even attempt service upon the agency. The record before the Court fails to disclose any justice" basis for invoking the "interest of exception under CLS CPLR § 306-b. Aubin v State, 282 A.D.2d 919 (3d Dept. 2001), app. denied, 97 N.Y.2d 606 (2001). WHEREFORE, respondent requests judgment dismissing the Petition, and granting such other and further relief as the Court deems just and proper. In the altemative, if the motion to dismiss is not granted, the respondent would request leave to file and serve a Verified Answer and Return within thirty (30) days of the decision on the instant motion. DATED: March 21, 2022 Binghamton, New York LETITIA JAMES Attorney e Aaron %¶t"12",*f. Date- 2022.03.21 Marcus 3moo. By: ,s AARON J. MARÖU Assistant Attorney General 4 of 6 FILED: BROOME COUNTY CLERK 03/21/2022 03:50 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/21/2022 State of New York Office of the Attorney General State Office Building 44 Hawley Street, 17th Fl. Binghamton, New York 13901-4433 Telephone: (607) 251-2770 TO: Andrew R. Petroski, Esq. (via e-filing) Garufi Law P.C. 68 Oak Street Binghamton, NY 13905 5 of 6 FILED: BROOME COUNTY CLERK 03/21/2022 03:50 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/21/2022 VERIFICATION AARON J. MARCUS, an attorney duly admitted to practice in the State of New York, affirms, under penalty of perjury, the following: I am an Assistant Attorney General in the Office of Letitia James, Attorney General of the State of New York and attorney for Respondent. I have been assigned to defend the within Petition, and I am acquainted with the facts and circumstances thereof. I have prepared and read the annexed Affirmation and know the contents thereof; that the same is true of my knowledge, except as to those matters therein stated to be alleged on information and belief, and that as to those matters, I believe them to be true. The source of my information and the grounds of my belief of the allegations contained in the Affinnation herein are derived from my investigation of the facts in this action, along with an examination of the file herein. This verification is made by me, pursuant to CPLR § 3020(d)(2), because respondent is a State Agency of the State of New York, and I am acquainted with the facts of this action. DATED: March 21, 2022 Binghamton, New York Aaron !97151"f, Date: 2022.03.21 arCUS 1s:osw-osoo· AÃRON J. MAR 6 of 6