The following e-filed documents, listed by NYSCEF document number (Motion 003) 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 were read on this motion to/for DISMISS. OPINION OF THE COURT In this negligence action, defendant Claudi Kofod (Kofod) moves by his attorneys, The Law Office of Jaime E. Gangemi, Staff Counsel to Motor Vehicle Accident Indemnification Corporation, pursuant to CPLR 3211 (a) (8), for an order dismissing the complaint in its entirety. Plaintiff, Jose Guzman, opposes. For the reasons set forth below, the motion is denied. Background Facts Plaintiff commenced the instant action to recover for injuries sustained on April 10, 2018, as a result of an accident that occurred on the roadway located at 177th Street, between St. Nicholas Avenue and Audubon Avenue, New York, New York (NY St Cts Elec Filing [NYSCEF] Doc No. 1, complaint at 3). Plaintiff was a pedestrian, when he and the vehicle owned and operated by defendant Kofod, came into contact, allegedly causing plaintiff to sustain serious injuries (id.). Defendant Kofod now seeks an order, pursuant to CPLR 3211 (a) (8), dismissing the complaint for lack of personal jurisdiction on the basis that plaintiff failed to serve defendant with the summons and complaint in accordance with CPLR 308 and has not filed proof of service in compliance with CPLR 306 (NYSCEF Doc No. 45, affirmation of defendant’s counsel at 1-2). Procedural Background Plaintiff filed the summons and complaint (NYSCEF Doc No. 15, complaint) on June 1, 2018. Plaintiff also filed an affidavit of service averring that on June 13, 2018, plaintiff served Toyota Lease Trust (TLT), codefendant in this action, with the summons and complaint by leaving a copy with a person authorized to accept service (NYSCEF Doc No. 2, Russel aff). On April 8, 2021, plaintiff filed a motion (mot. seq. 001) seeking an order compelling Motor Vehicle Accident Indemnification Corporation (MVAIC) to answer the summons and complaint on behalf of the defendants (NYSCEF Doc No. 4-12). On October 20, 2022, this court issued a decision denying plaintiff’s unopposed motion based on plaintiff’s failure to establish that reasonable efforts had been made to ascertain the whereabouts of defendant Kofod (NYSCEF Doc No. 15). On November 21, 2022, plaintiff filed another motion (mot. Seq. 002) pursuant to CPLR 2221 asking this court to grant reargument and to compel MVAIC to interpose an answer for defendant Kofod. On August 29, 2023, this court issued a decision finding that plaintiff successfully demonstrated that defendant had left the country shortly after the accident (NYSCEF Do No. 35 at 3). Based on its findings, this court held that in the interest of justice, defendant Kofod was not readily ascertainable within the meaning of Insurance Law 5218 and directed MVAIC to interpose an answer on behalf of Kofod (id.). MVAIC filed an answer on defendant’s behalf on September 20, 2023, asserting three affirmative defenses, including plaintiff’s culpable conduct, lack of personal jurisdiction, and expiration of the statute of limitations (NYSCEF Doc No. 39). Defendant also interposed a cross-claim against TLT for indemnification based on TLT’s alleged negligence (id.). On September 28, 2023, attorneys1 for defendant Kofod filed the instant motion on his behalf seeking an order pursuant to CPLR 3211 (a) (8) dismissing the complaint on the grounds that the plaintiff did not serve defendant Kofod with the summons and complaint and has failed to supply proof of service of the summons and complaint on Kofod. Plaintiff opposed the instant motion and, after defendant filed a reply, this court took this motion under submission. Relevant Statutes 3211 (a) (8) CPLR 3211 (a) (8) provides, in relevant part: “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that…the court has not jurisdiction of the person of the defendant.” On a CPLR 3211 (a) (8) motion to dismiss for lack of personal jurisdiction, “[a]lthough a plaintiff is not required to plead and prove personal jurisdiction in the complaint, where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff” (Skutnik v. Messina, 178 AD3d 744, 744 [2d Dept 2019] [internal quotation marks and citations omitted]). As such, “[i]n opposing a motion to dismiss the complaint pursuant to CPLR 3211(a) (8) on the ground of lack of jurisdiction, a plaintiff need only make a prima facie showing that such jurisdiction exists” (id. at 744-745 [internal quotation marks and citations omitted]). CPLR 308 CPLR 308 dictates the methods of service upon a natural person. Pursuant to CPLR 308, the summons may be delivered directly to the person to be served, to a person of suitable age or discretion, or, after attempting personal and substitute service with due diligence, by “affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business…” (CPLR 308 [4]). Where a party is served by substitute or affix-and-mail service, proof of service must be filed within 20 days of delivery or mailing (CPLR 308 [2], [4]). If service under paragraphs one through four is impracticable, CPLR 308 (5) permits a plaintiff to make an ex parte motion to the court seeking an order directing the method of service. CPLR 306 and 306-b CPLR 306 contains requirements for proof of service, including contents and form. Pursuant to CPLR 306, proof of service must, among other things “specify the papers served, the person who was served and the date, time, address…and set forth facts showing that the service was made by an authorized person and in an authorized manner.” (CPLR 306 [a]). CPLR 306-b requires service of the summons and complaint to be made within 120 days of commencement of the action. Discussion Arguments Defendant moves for dismissal pursuant to CPLR 3211 (a) (8) because plaintiff failed to produce an affidavit of service of the summons and complaint. Defendant argues that the court has no jurisdiction in the instant case because plaintiff has not satisfied a jurisdictional prerequisite — effectuation of proper service. In the absence of proof of service, defendant urges the court to dismiss the instant action. Plaintiff opposes and argues that this court has already determined that defendant Kofod is not readily ascertainable under the meaning of Insurance Law 5218. Plaintiff asserts that in its decision on the prior motion (mot. seq. 002), this court permitted plaintiff to bring an action against MVAIC by ruling that defendant is unavailable for service with process. Plaintiff asserts that this court directed MVAIC to interpose an answer in lieu of directing plaintiff to bring a separate action against MVAIC. Plaintiff contends that defendant has not moved to reargue this court’s prior decision, nor to appeal it; therefore, defendant should be barred from relitigating an issue, which the court has already decided. Thus, according to plaintiff, defendant is collaterally *2 estopped from seeking dismissal on this basis. In reply, defendant maintains that the prior order merely compels MVAIC to answer on behalf of Kofod and that the narrow issue before this court on the prior motion was whether MVAIC could be compelled to answer for defendant Kofod pursuant to Insurance Law 5209. Defendant asserts that Insurance Law 5209 bestows MVAIC with the same rights and defenses as Kofod. Since plaintiff never sought relief pursuant to CPLR 308 (5), asking the court to direct an alternative method for service, and since service was not effectuated in compliance with CPLR 308, defendant asserts that the defense of lack of personal jurisdiction is still available to Kofod and MVAIC. Insurance Law & MVAIC The issue before the court is whether defendant’s jurisdictional defense survives the court’s determination that defendant is not readily ascertainable pursuant to Insurance Law 5218. As this court has previously held, the intent of the MVAIC law under Article 52 of the Insurance Law is to provide relief to innocent victims, who would otherwise be barred from recovery against the owners or operators of offending vehicles, such as in hit-and-run cases and cases involving uninsured individuals (NYSCEF Doc No. 35). Insurance Law 5201, titled “Title and Purpose,” states in relevant part “The legislature finds and declares that the motor vehicle financial security act […] fails to accomplish its full purpose of securing to innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, in that the act makes no provision for the payment of loss on account of injury to or death of persons who, through no fault of their own, were involved in motor vehicle accidents caused by […] uninsured motor vehicles registered in a state other than New York” (id. at 5201 [b] [1]). Moreover, the legislature determined that “it is a matter of grave concern that those persons are not recompensed for their injury and financial loss inflicted upon them and that the public interest can best be served by closing such gaps in the motor vehicle financial security act and the comprehensive motor vehicle insurance reparations act through the continued operation of the motor vehicle accident indemnification corporation” (id. at 5201). The legislature established MVAIC to provide injured parties with “the same protection they would have if the tortfeasor were covered by insurance.” (Romano v. Motor Veh. Acc. Indem. Corp., 4 Misc 3d 1001[A], 2004 NY Slip Op 50592[U], *2 [Sup Ct, Kings County 2004]). The purpose of this statute is to help victims recover; thus, “[t]he statute cannot be narrowly construed but a liberal construction is mandated to accomplish the protection sought to be given” (Gordon v. Motor Veh. Acc. Indem. Corp., 90 Misc 2d 382, 383 [Sup Ct, Bronx County 1976]). Under Insurance Law 5209 (b), MVAIC “may through counsel appear and defend in any action on its own behalf and on behalf of a defendant and take any other steps it deems appropriate including any appropriate method of review. All such acts shall be deemed to be the acts of the corporation and the defendant.” Insurance Law 5218 (a) allows a qualified person who sustained a personal injury as a result of a hit-and- run accident, “when the identity of the motor vehicle and of the operator and owner cannot be ascertained,” to make an application to a court to permit an action against MVAIC. Section 5218 (b) of the Insurance Law allows the court to “proceed upon the application in a summary manner and make an order permitting the *3 action when after a hearing it is satisfied that [among other things]…all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the identity of the motor vehicle and the owner and operator cannot be established ” (id.) Collateral estoppel Collateral estoppel, or issue preclusion, “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Tel. Co., 62 NY2d 494, 500 [1984] [citations omitted]). Collateral estoppel “applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]). Relatedly, “[t]he doctrine of the ‘law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” (Martin v. City of Cohoes, 37 NY2d 162, 165 [1975], rearg denied 37 NY2d 817 [1975] [citations omitted]). Fundamentally, “the doctrine of the law of the case applies only to legal determinations that were necessarily resolved on the merits in the prior decision” (Baldasano v. Bank of NY, 199 AD2d 184, 185 [1st Dept 1993]). Analysis In the instant case, this court’s prior determination that Kofod was not readily ascertainable pursuant to Insurance Law 5218 precludes MVAIC’s claim that Kofod was not properly served with the summons and complaint. When this court considered plaintiff’s prior application (mot. seq. 002), it determined that Kofod was not readily ascertainable pursuant to Insurance Law 5218 for the purposes of directing MVAIC to answer on behalf of defendant. When making a determination under Insurance Law 5218 (b) (5), the court has, in other cases, considered police reports (Matter of Bullock v. Motor Veh. Acc. Indem. Corp., 219 AD3d 828, 830 [2d Dept 2023]) and evidence of prior actions (Rawlins v. Santana, 63 Misc 3d 133[A], 2019 NY Slip Op 50451[U], *1 [App Term, 1st Dept, 1st & 12th Jud Dists 2019]) to establish whether plaintiff documented reasonable efforts to ascertain the defendant’s identity. To reach this conclusion in the instant case, the court considered an affidavit from an investigator documenting the investigator’s findings that after a brief move to New York from New Jersey in 2018, Kofod moved back to Denmark, where Kofod currently resides; that at the time of the accident, the New Jersey DMV did not have vehicle insurance information on file for the vehicle at issue; and that the registration for the subject vehicle expired before the accident and was not renewed. The court also considered a certification of vehicle registration supporting the investigator’s findings regarding the automobile’s registration. Plaintiff’s submissions in support of the finding that Kofod was not readily ascertainable through reasonable efforts demonstrated to the satisfaction of this court that plaintiff exhausted his remedies against Kofod. This court has already determined that defendant Kofod left the country shortly after the accident and has not returned. Nor has MVAIC moved for reargument on the issue of whether Kofod is ascertainable for the purposes of this proceeding. Thus, this court’s prior determination that Kofod was and is not readily ascertainable pursuant to Insurance Law 5218 is the law of the case and precludes MVAIC’s argument that the case must be dismissed because Kofod was not *4 properly served with the summons and complaint. MVAIC has complied with this court’s prior order and answered on behalf of Kofod, whose interests are now represented by competent counsel (see generally Dobkin v. Chapman, 21 NY2d 490, 504-505 [1968] ["Relevant also to the due process balance is the presence of the insurer in Keller and of the appellant MVAIC in Dobkin and in Sellars; these, rather than the named defendants, are the real parties in interest in all but form."]). That Kofod chose to leave the country should not preclude plaintiff from recovering for his injuries, especially where the legislature enacted the MVAIC statute specifically to close gaps in the law that would allow innocent victims to go without recompense for their injuries and financial loss (Matter of Daniel [Motor Veh. Acc. Indem. Corp.], 181 Misc 2d 941, 951 [Civ Ct, Bronx County 1999] ["Article 52 was enacted for the benefit of innocent victims, not for the benefit of MVAIC, which is a creature of, and funded by, that enactment to close the gaps in the law and to relieve the financial burdens imposed upon victims of hit and run drivers."]). The determination that Kofod was not readily ascertainable for the purposes of compelling MVAIC to answer was based on facts particular to the MVAIC statute, which permits plaintiff to go forward against Kofod as the unascertainable owner of an uninsured out-of-state motor vehicle pursuant to Insurance Law 5201 (b) (1) and 5218. For the foregoing reasons, defendant Kofod’s motion is denied. Conclusion and Order Accordingly, it is hereby ORDERED that the motion (seq. no. 003) of defendant Claudi Kofod to dismiss the complaint herein is denied; and it is further ORDERED that within 30 days of entry, Plaintiff shall serve a copy of this Decision and Order upon Defendant with Notice of Entry. This constitutes the Decision and Order of the Court. Dated: August 6, 2024
