Preview
FILED: BROOME COUNTY CLERK 06/03/2022 03:06 PM INDEX NO. EFCA2022000255
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STATE OF NEW YORK
SUPREME COURT : COUNTY OF BROOME
THOMAS R. PILKINGTON
NOTICE OF ENTRY
Petitioner
- against - Index No. EFCA2022-0255
NEW YORK STATE DEPARTMENT OF
MOTOR VEHICLES
Respondent
For Judgment Pursuant to Article 78 of the
Civil Practice Law and Rules
PLEASE TAKE NOTICE that the within is a true copy of a Decision and Order of the
23rd
Honorable Jeffrey A. Tait, Supreme Court Justice, dated the day of May, 2022, and entered in
31't
the Office of the Clerk of Broome County on the day of May, 2022.
bl
Dated: June | , 2022 rw (f (bkros
Binghamton, New York ANDREW R. PETROSKI, ESQ.
Garufi Law P.C.
Attorneys for Petitioner
68 Oak Street
Binghamton, New York 13905
607.722.5000
TO: AARON J. MARCUS, ESQ.
New York State Attorney General's Office
Attorneys for Respondent
44 Hawley Street, Floor 17
Binghamton, New York 13901
JAMES M. PASSINEAU, ESQ.
Assistant Counsel
New York State Department of Motor
Vehicles
Assistant Counsel for Respondent
6 Empire State Plaza
Albany, New York 12228
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At a Term of the Supreme Court
of the State of New York, held in and
for the Sixth Judicial District, at the
Broome County Courthouse, in the
City of Binghamton, New York on the
25th day of March 2022.
PRESENT: HONORABLE JEFFREY A. TAIT
JUSTICE PRESIDING
STATE OF NEW YORK
SUPREME COURT : COUNTY OF BROOME
THOMAS R. PILKINGTON,
Petitioner, DECISION AND ORDER
-against- Index EFCA
No. 2022-0255
I NEW YORK STATE DEPARTMENT OF
MOTOR VEHICLES,
Respondent.
For Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules.
APPEARANCES:
Andrew R. Petroski, Esq.
Garufi Law, P.C.
Attorneys for Petitioner
68 Oak Street
Binghamton, NY 13905
Aaron J. Marcus, AAG
New York State Office of the Attorney General
Attorneys for Respondent
44 Hawley Street, Floor 17
Binghamton, NY 13901
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HON. RFFREY A. TAIT, J.S.C.
This matter is before the Court on the motion to dismiss of the respondent New York
State Department of Motor Vehicles (DMV) based on the lack of and/or improper service
3211(a)(8)1
pursuant to CPLR §§ 403(c), 7804(c ), 307(1), and and the petitioner Thomas R.
Pilkington's cross motion seeking leave to extend the time for service pursuant to CPLR §§
3012(d), 2001, 2004, and 2005.
By way of brief background, Mr. Pilkington commenced this Article 78 proceeding
essentially seeking to reinstate his driver's license by filing a petition, notice of petition, and
exhibits with the Broome County Clerk's Office on February 14, 2022. The petition states
Mr. Pilkington seeks "a review of whether the Decision of the New York State Department of
2
Motor Vehicles Appeals Board, dated October 26, 2021, upholding the denial of an
application for re-licensure and finding that the decision of the Driver Improvement Program
basis."
showed sufficient evidence to support a rational and sound
An affidavit of service filed February 28, 2022 states that on February 25, 2022, a notice
of petition, petition, judicial assignment notice, and notice of electronic filing were served on
the DMV by personally delivering a copy to Assistant Attorney General Mark Sweeney
pursuant to CPLR § 307.
In the alternative, if the motion to dismiss is denied, the DMV requests leave to file and
serve a Verified Answer and Return within thirty (30) days of this Court's decision in that
regard.
2
According to the DMV, it was mailed to Mr. Pilkington on October 29, 2021.
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For the reasons that follow, the DMV contends that service was deficient and argues
that the proceeding should be dismissed. Mr. Pilkington disagrees.
The motions
On March 21, 2022, the DMV filed a motion to dismiss based on lack of personal
jurisdiction together with the affirmations of Assistant Attorney General Aaron Marcus and
the DMV's Assistant Counsel James M. Passineau and an exhibit.
On March 23, 2022, Mr. Pilkington filed a cross motion seeking leave to extend the
time for service together with the affirmations of his attorneys Carman M. Garufi and Andrew
R. Petroski with exhibits.
Both the motion and cross motion were returnable on March 25, 2022. At the return
date, both parties appearance by their counsel.
Law
parties'
The counsel both cite various statutes in support of their position
CPLR 3211(a)(8) provides: "Motion to dismiss cause of action. A party may move for
judgment dismissing one or more causes of action asserted against him on the ground that: 8.
defendant."
the court has not jurisdiction of the person of the
CPLR § 7804(c) provides:
"Time for service of notice of petition and answer. Unless the court
grants an order to show cause to be served in lieu of a notice of petition at a
time and in a manner specified therein, 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. An answer and supporting affidavits, if any, shall be served at least five
days before such time. A reply, together with supporting affidavits, if any, shall
be served at least one day before such time. In the case of a proceeding pursuant
to this article against a state body or officers, or against members of a state body
or officers whose terms have expired as authorized by subdivision (b) of section
2
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7802 of this chapter, 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. In the case of a
proceeding pursuant to this article against members of bodies of governmental
subdivisions whose terms have expired as authorized by subdivision (b) of
section 7802 of this chapter, the order to show cause or notice of petition must
be served upon such governmental subdivision in accordance with section
chapter."
311 of this
CPLR § 306-b provides:
"Service of the . . . petition with a notice of petition or order to show
cause shall be made within one hundred twenty days after the commencement
of the action or proceeding, provided that in an action or proceeding. . . 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. 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 that defendant, or upon good cause shown or in the interest of
service."
justice, extend the time for
CPLR § 307(1) provides: "Personal 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
state."
attorney-general within the
CPLR § 403(c) provides: "Manner of service. A notice of petition shall be served in
action."
the same manner as a summons in an
CPLR § 3012(d) provides: "Extension of time to appear or plead. Upon the application
of a party, the court may extend the time to appear or plead, or compel the acceptance of a
pleading untimely served, upon such terms as may be just and upon a showing of reasonable
default."
excuse for delay or
3
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CPLR § 2001 provides: "At any stage of an action, including the filing of a summons
with notice, summons and complaint or petition to commence an action, the court may permit 1
a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index
number or other mistake in the filing process, to be corrected, upon such terms as may be just,
or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity
paid."
shall be disregarded, provided that any applicable fees shall be
CPLR § 2004 provides: "Except where otherwise expressly prescribed by law, the court
may extend the time fixed by any statute, rule or order for doing any act, upon such terms as
may be just and upon good cause shown, whether the application for extension is made before
fixed."
or after the expiration of the time
CPLR § 2005 provides: "Upon an application satisfying the requirements
of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a
matter of law, be precluded from exercising its discretion in the interests of justice to excuse
failure."
delay or default resulting from law office
CPLR § 2103(b) provides: "Except where otherwise prescribed by law or order of
court, papers to be served upon a party in a pending action shall be served upon the party's
attorney."
Arguments of the Parties
In support of its motion to dismiss, the DMV argues that where, as here, the applicable
statute of limitations is four months or less, "service shall be made not later than fifteen days
expires"
after the date on which the applicable statute of limitations (citing CPLR § 306-b).
4
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While the DMV acknowledges the proceeding was timely commenced, it argues that service
has not been completed and the time in which to do so has expired.
In that regard, Mr. Passineau's affirmation states he conducted an investigation and
determined that the DMV was never served with the petition. He argues any future attempt
to serve the DMV in this proceeding would be outside the four month statute of limitations and
time barred (see CPLR § 217).
Mr. Marcus's affirmation points out that a request for an extension of time for service
pursuant to CPLR § 306-b may only be granted upon good cause shown or in the interest of
justice. He argues good cause cannot be established here, as Mr. Pilkington never actually
diligence"
attempted to serve the DMV and cannot establish he exercised "due in that regard.
ofjustice"
For the same reason, he argues there is no basis to invoke the "interest exception.
In opposition, Mr. Pilkington's counsel argues that proper service wasmade upon the
DMV by personally serving its legal counsel pursuant to CPLR § 2103(b) or alternatively, if
the Court finds service to be improper, there are bases upon which the Court can grant an
extension of time to serve the DMV.
In his affirmation, Mr. Petroski attaches a letter dated Februaiy 24th, 2022, which he
states accompanied the service of the petition upon the Assistant Attorney General. In it, he
asks the recipient at the Attorney General's office to "please advise if service directly upon the
required."
New York State Department of Motor Vehicles is He and Mr. Garufi both assert
that it is the custom in Broome County for counsel to accept service on behalf of their clients
and they never received a response stating that such courtesy would not be extended here, with
5
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!
the DMV instead filing its motion seeking dismissal. Mr. Petroski also recounts the
difficulties in locating the DMV's actual address for service, stating:
"A review of their website or a search of the web does not reveal a
mailing address for their headquarters or legal department. The address
provided in Respondents Exhibit 1, which was a copy of the DMV Appeals
Board's final decision, is a different address than Attorney Passineau provided
on his signature line in his Affirmation, which is a different address still from
other exhibits previously provided to the Court along with the Petition. In fact,
Attorney Passineau's inclusion of the address is the first time Petitioner has
seen DMV's mailing address, despite diligent efforts at seeking same. Put
bureaucracy."
simply, the DMV's actual address is hidden underneath layers of
He also points out that the DMV's motion to dismiss was filed on March 21, 2022 and
the petition return date was March 2022. As the motion was filed a day beyond the five-
25,
day period provided by CPLR § 7804(c), he argues it is untimely and should not be considered.
Analysis
There is no dispute that the only service which occurred was the February 25, 2022
personal service on the Assistant Attorney General. The DMV states this was insufficient, as
the DMV was never served. Mr. Pilkington states it should be considered sufficient, as the
Attorney General is counsel for the DMV and never stated it would not accept service on the
DMV's behalf.
However, where the proceeding is against a state body such as the DMV, CPLR §
Preview
FILED: BROOME COUNTY CLERK 06/03/2022 03:06 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 06/03/2022 STATE OF NEW YORK SUPREME COURT : COUNTY OF BROOME THOMAS R. PILKINGTON NOTICE OF ENTRY Petitioner - against - Index No. EFCA2022-0255 NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES Respondent For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules PLEASE TAKE NOTICE that the within is a true copy of a Decision and Order of the 23rd Honorable Jeffrey A. Tait, Supreme Court Justice, dated the day of May, 2022, and entered in 31't the Office of the Clerk of Broome County on the day of May, 2022. bl Dated: June | , 2022 rw (f (bkros Binghamton, New York ANDREW R. PETROSKI, ESQ. Garufi Law P.C. Attorneys for Petitioner 68 Oak Street Binghamton, New York 13905 607.722.5000 TO: AARON J. MARCUS, ESQ. New York State Attorney General's Office Attorneys for Respondent 44 Hawley Street, Floor 17 Binghamton, New York 13901 JAMES M. PASSINEAU, ESQ. Assistant Counsel New York State Department of Motor Vehicles Assistant Counsel for Respondent 6 Empire State Plaza Albany, New York 12228 1 of 12 FILED: BROOME COUNTY CLERK 06/03/2022 03:06 PM INDEX NO. EFCA2022000255 NYSCEF DOC.BRCOME NO. 25 COUNTY 05/31/2022 33 RECEIVED INDEX NO.NYSCEF: 06/03/2022 EFCA202200 255 FILED : CLERK 12: Pli NYSCEF DOC. NC 22 RECEIVED NYSCEF: 05/31/:!022 At a Term of the Supreme Court of the State of New York, held in and for the Sixth Judicial District, at the Broome County Courthouse, in the City of Binghamton, New York on the 25th day of March 2022. PRESENT: HONORABLE JEFFREY A. TAIT JUSTICE PRESIDING STATE OF NEW YORK SUPREME COURT : COUNTY OF BROOME THOMAS R. PILKINGTON, Petitioner, DECISION AND ORDER -against- Index EFCA No. 2022-0255 I NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Respondent. For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. APPEARANCES: Andrew R. Petroski, Esq. Garufi Law, P.C. Attorneys for Petitioner 68 Oak Street Binghamton, NY 13905 Aaron J. Marcus, AAG New York State Office of the Attorney General Attorneys for Respondent 44 Hawley Street, Floor 17 Binghamton, NY 13901 1 of 11 2 of 12 FILED: BROOME COUNTY CLERK 06/03/2022 03:06 PM INDEX NO. EFCA2022000255 NYSCEF INDEX EFCA2022000255 NO.NYSCEF: FILED DOC. : NO. 25 BRCOME COUNTY CLERK 05/31/2022 12:33 PM) RECEIVED 06/03/2022 NYSCEF DOC. NO 22 RECEIVED NYSCEF: 05/31/1022 HON. RFFREY A. TAIT, J.S.C. This matter is before the Court on the motion to dismiss of the respondent New York State Department of Motor Vehicles (DMV) based on the lack of and/or improper service 3211(a)(8)1 pursuant to CPLR §§ 403(c), 7804(c ), 307(1), and and the petitioner Thomas R. Pilkington's cross motion seeking leave to extend the time for service pursuant to CPLR §§ 3012(d), 2001, 2004, and 2005. By way of brief background, Mr. Pilkington commenced this Article 78 proceeding essentially seeking to reinstate his driver's license by filing a petition, notice of petition, and exhibits with the Broome County Clerk's Office on February 14, 2022. The petition states Mr. Pilkington seeks "a review of whether the Decision of the New York State Department of 2 Motor Vehicles Appeals Board, dated October 26, 2021, upholding the denial of an application for re-licensure and finding that the decision of the Driver Improvement Program basis." showed sufficient evidence to support a rational and sound An affidavit of service filed February 28, 2022 states that on February 25, 2022, a notice of petition, petition, judicial assignment notice, and notice of electronic filing were served on the DMV by personally delivering a copy to Assistant Attorney General Mark Sweeney pursuant to CPLR § 307. In the alternative, if the motion to dismiss is denied, the DMV requests leave to file and serve a Verified Answer and Return within thirty (30) days of this Court's decision in that regard. 2 According to the DMV, it was mailed to Mr. Pilkington on October 29, 2021. 2 of 11 3 of 12 FILED: BROOME COUNTY CLERK 06/03/2022 03:06 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 25 INDEX RECEIVED EFCA202200 NO. NYSCEF: 255 06/03/2022 FILED : BRCOME COUNTY CLERK 05/31/2022 12:33 Pli NYSCEF DOC. NC. 22 RECEIVED NYSCEF: 05/31/ 022 For the reasons that follow, the DMV contends that service was deficient and argues that the proceeding should be dismissed. Mr. Pilkington disagrees. The motions On March 21, 2022, the DMV filed a motion to dismiss based on lack of personal jurisdiction together with the affirmations of Assistant Attorney General Aaron Marcus and the DMV's Assistant Counsel James M. Passineau and an exhibit. On March 23, 2022, Mr. Pilkington filed a cross motion seeking leave to extend the time for service together with the affirmations of his attorneys Carman M. Garufi and Andrew R. Petroski with exhibits. Both the motion and cross motion were returnable on March 25, 2022. At the return date, both parties appearance by their counsel. Law parties' The counsel both cite various statutes in support of their position CPLR 3211(a)(8) provides: "Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 8. defendant." the court has not jurisdiction of the person of the CPLR § 7804(c) provides: "Time for service of notice of petition and answer. Unless the court grants an order to show cause to be served in lieu of a notice of petition at a time and in a manner specified therein, 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. An answer and supporting affidavits, if any, shall be served at least five days before such time. A reply, together with supporting affidavits, if any, shall be served at least one day before such time. In the case of a proceeding pursuant to this article against a state body or officers, or against members of a state body or officers whose terms have expired as authorized by subdivision (b) of section 2 3 of 11 4 of 12 FILED: BROOME COUNTY CLERK 06/03/2022 03:06 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 25 INDEX RECEIVED EFCA2022000255 NO.NYSCEF: 06/03/2022 (FILED : BRCOME COUNTY CLERK 05/31/2022 12:33 PM) NYSCEF DOC. NC 22 RECEIVED NYSCEF: 05/31/::022 7802 of this chapter, 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. In the case of a proceeding pursuant to this article against members of bodies of governmental subdivisions whose terms have expired as authorized by subdivision (b) of section 7802 of this chapter, the order to show cause or notice of petition must be served upon such governmental subdivision in accordance with section chapter." 311 of this CPLR § 306-b provides: "Service of the . . . petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding. . . 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. 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 that defendant, or upon good cause shown or in the interest of service." justice, extend the time for CPLR § 307(1) provides: "Personal 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 state." attorney-general within the CPLR § 403(c) provides: "Manner of service. A notice of petition shall be served in action." the same manner as a summons in an CPLR § 3012(d) provides: "Extension of time to appear or plead. Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable default." excuse for delay or 3 4 of 11 5 of 12 FILED: BROOME COUNTY CLERK 06/03/2022 03:06 PM INDEX NO. EFCA2022000255 NYSCEF DOC. 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No. 22 RECEIVED NYSCEF: 05/31/ 022 CPLR § 2001 provides: "At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit 1 a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity paid." shall be disregarded, provided that any applicable fees shall be CPLR § 2004 provides: "Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before fixed." or after the expiration of the time CPLR § 2005 provides: "Upon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse failure." delay or default resulting from law office CPLR § 2103(b) provides: "Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney." Arguments of the Parties In support of its motion to dismiss, the DMV argues that where, as here, the applicable statute of limitations is four months or less, "service shall be made not later than fifteen days expires" after the date on which the applicable statute of limitations (citing CPLR § 306-b). 4 5 of 11 6 of 12 FILED: BROOME COUNTY CLERK 06/03/2022 03:06 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 25 INDEX RECEIVED EFCA2022000255 NO.NYSCEF: 06/03/2022 [FILED : BRCOME COUNTY CLERK 05/31/2022 12:33 PM) NYSCEF DOC. NC 22 RECEIVED NYSCEF: 05/31/1022 While the DMV acknowledges the proceeding was timely commenced, it argues that service has not been completed and the time in which to do so has expired. In that regard, Mr. Passineau's affirmation states he conducted an investigation and determined that the DMV was never served with the petition. He argues any future attempt to serve the DMV in this proceeding would be outside the four month statute of limitations and time barred (see CPLR § 217). Mr. Marcus's affirmation points out that a request for an extension of time for service pursuant to CPLR § 306-b may only be granted upon good cause shown or in the interest of justice. He argues good cause cannot be established here, as Mr. Pilkington never actually diligence" attempted to serve the DMV and cannot establish he exercised "due in that regard. ofjustice" For the same reason, he argues there is no basis to invoke the "interest exception. In opposition, Mr. Pilkington's counsel argues that proper service wasmade upon the DMV by personally serving its legal counsel pursuant to CPLR § 2103(b) or alternatively, if the Court finds service to be improper, there are bases upon which the Court can grant an extension of time to serve the DMV. In his affirmation, Mr. Petroski attaches a letter dated Februaiy 24th, 2022, which he states accompanied the service of the petition upon the Assistant Attorney General. In it, he asks the recipient at the Attorney General's office to "please advise if service directly upon the required." New York State Department of Motor Vehicles is He and Mr. Garufi both assert that it is the custom in Broome County for counsel to accept service on behalf of their clients and they never received a response stating that such courtesy would not be extended here, with 5 6 of 11 7 of 12 FILED: BROOME COUNTY CLERK 06/03/2022 03:06 PM INDEX NO. EFCA2022000255 NYSCEF DOC. NO. 25 INDEX RECEIVED EFCA202200 NO. NYSCEF: b255 06/03/2022 FILED : BRCOME COUNTY CLERK 05/31/2022 12:33 PM| NYSCEF DOC. NC 22 RECEIVED NYSCEF: 05/31/2022 ! the DMV instead filing its motion seeking dismissal. Mr. Petroski also recounts the difficulties in locating the DMV's actual address for service, stating: "A review of their website or a search of the web does not reveal a mailing address for their headquarters or legal department. The address provided in Respondents Exhibit 1, which was a copy of the DMV Appeals Board's final decision, is a different address than Attorney Passineau provided on his signature line in his Affirmation, which is a different address still from other exhibits previously provided to the Court along with the Petition. In fact, Attorney Passineau's inclusion of the address is the first time Petitioner has seen DMV's mailing address, despite diligent efforts at seeking same. Put bureaucracy." simply, the DMV's actual address is hidden underneath layers of He also points out that the DMV's motion to dismiss was filed on March 21, 2022 and the petition return date was March 2022. As the motion was filed a day beyond the five- 25, day period provided by CPLR § 7804(c), he argues it is untimely and should not be considered. Analysis There is no dispute that the only service which occurred was the February 25, 2022 personal service on the Assistant Attorney General. The DMV states this was insufficient, as the DMV was never served. Mr. Pilkington states it should be considered sufficient, as the Attorney General is counsel for the DMV and never stated it would not accept service on the DMV's behalf. However, where the proceeding is against a state body such as the DMV, CPLR §