Order In the above entitled proceeding, petitioner Hamline G. Kayee prays this Court deem jurisdiction complete regarding the substituted service of the citation pursuant to this Court’s December 4, 2019 order. In accordance with this Court’s December 4, 2019 order, petitioner was directed to serve the citation on Charlesetta Jallah (wife); Theresa Savice (child); Stemett L. Fleming (child); Garfield Jallah, Jr. (child); Jefferson G. Jallah (child); and Victor D. Jallah (child), (hereinafter referred to as “distributees”) as provided in SCPA §307 (3)(e). These citations were to be served, care of the Office of the Consulate General of Liberia, at 228 East 45th Street Suite 602, New York, New York 10017 by first-class mail, with a receipt for regular mailing for each individual so served, however no certified mail return receipts were requested. On January 15, 2020, petitioner submitted to this Court an affidavit of service of Donna Spangler. Ms. Spangler swore that the citations for the distributees, along with a copy of this Court’s December 4, 2019 order, was served upon each distributee by First Class Certified Mail, without a return receipt requested, enclosed in a wrapper under the exclusive care and custody of the United States Postal Service within the State of New York, on December 13, 2019. The affidavit of service further indicated that the distributees were mailed the citation and order “care of” the Office of the Consulate General of Liberia, at 228 East 45th Street Suite 602, New York, New York 10017. However, petitioner submitted United States Postal Service certified mail receipts indicating that the mailings were sent to “The Consulate General of Liberia” and without the name of the distributee appearing anywhere on the reciept. Petitioner did not include copies of the actual envelopes to this Court. It is unclear from the affidavit of service and the certified mail receipts submitted by petitioner, whether the name of each distributee appeared on the envelope or if the envelope was merely addressed to The Consulate General of Liberia. Therefore, petitioner failed to demonstrate that the mailings were sufficiently addressed to each named distributee so as to ensure delivery to each named distributee. As the instant mailings are for the citations issued to each named distributee, this Court cannot obtain personal jurisdiction of the distributees until such time as the citation has been properly served upon each distributee. Although this substituted method of service is imperfect, the likelihood of delivery to the named distributees was further impaired by the failure to place the name of each distributee on the mailing. “In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant — notice that must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” Ruffin v. Lion Corp., 15 N.Y.3d 578, 582 (N.Y. 2010). Further, CPLR §2001 provides: “The court may permit 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, on such terms as may be just or if a substantial right of a party is not prejudiced by the mistake, omission, defect or irregularity then it shall be disregarded provided that any applicable fees shall be paid.” In Grskovic v. Holmes, the court held that prejudice is a factor that must be taken into account only when the court “disregards” a mistake as compared to “correcting” or “fixing” one, therefore courts may correct mistakes upon such terms as may be just or may disregard such mistakes if a substantial right of a party is not prejudiced. 111 A.D.3d 234, 243 (2d Dep’t 2013). However, the court’s ability to apply CPLR §2001 presupposes that the court has acquired jurisdiction. Common Council of City of Gloversville v. Town Board of Johnstown, 63 A.D.2d 1081 (3rd Dep’t 1978). Delivery of process to the wrong person, or by unauthorized method, poses a threat that the respondent will not actually receive notice of the action and is therefore a jurisdictional flaw. However, delivery by a process server who resides in the wrong state poses no such threat and therefore is technical in nature and dismissed. Ruffin v. Lion Corp., 15 N.Y.3d 578, 582 (N.Y. 2010). In this proceeding, the affidavit of service and the receipts of certified mailing fail to provide this Court with proof that each mailing was addressed to each distributee as opposed to the mailings being addressed solely to the Consulate General of Liberia. This defect is not a mere technical issue, but rather a substantial issue. This issue poses a further threat that notice would not be reached by the cited distributees, since Liberia is a large country with roughly a population of five million people. Therefore, this jurisdictional flaw must not be disregarded under CPLR §2001. It is the order of this Court, that the petitioner through counsel, serve the cited distributees by first class mail, with a receipt for regular mailing for each individual so served by supplemental citation to be provided to this Court, and such citation shall be returnable on March 25, 2020, at 9:30 A.M., prior to a determination that jurisdiction is complete. Dated: February 11, 2020 The Surrogate would like to thank Angelica Montemarano for her assistance in the preparation of this decision.
