Shea v. Kralik

—In a proceeding pursuant to CPLR article 78 to review a determination of James F. Kralik, dated January 10, 1994, which found the petitioner guilty of gross misconduct and insubordination and imposed a penalty of two weeks suspension without pay from his position as a Rockland County Correction 751 Officer, the appeal is from an order of the Supreme Court, Rockland County (Miller, J.), dated June 27,1994, which denied James F. Kralik’s motion to dismiss the proceeding pursuant to CPLR 3211 (a) (8). Ordered that on the court’s own motion the appellant’s notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further, Order that the order is reversed, on the law, with costs, the motion to dismiss is granted, and the proceeding is dismissed on the merits. The petitioner purportedly commenced this proceeding against the appellant James F. Kralik, a natural person, pursuant to CPLR 308 (3). However, since the appellant never designated the person who accepted service as an agent to accept service in accordance with CPLR 318, service was ineffective (see, Matter of Gottesman, 127 AD2d 563; Espy v Gloriando, 85 AD2d 652, affd 56 NY2d 640). Since no other method of service was attempted, the court never acquired personal jurisdiction over the appellant and the proceeding should have been dismissed. Bracken, J. P., O’Brien, Ritter, Friedmann and Goldstein, JJ., concur.