Opinion
April 24, 1995
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, so much of the order dated March 15, 1993, as deemed AIU Insurance Co. to have insured the vehicle owned by Eagle Fuel Transport, Inc. is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
Whether or not authorized by a court order, jurisdiction over a nonparty to a proceeding to stay arbitration cannot be obtained by service upon it of a notice of petition and petition by either ordinary mail or certified mail (including return receipt requested) (see, e.g., Matter of Allstate Ins. Co. v Perez, 157 A.D.2d 521; Lumbermens Mut. Cas. Co. v Oliphant, 152 A.D.2d 541; Matter of Hanover Ins. Co. v McIntyre, 142 A.D.2d 728; Matter of Allcity Ins. Co. [Guy], 97 A.D.2d 374; Matter of American Sec. Ins. Co. v Stanley, 86 A.D.2d 834). Here, the court did not order proper service upon AIU Insurance Co. (hereinafter AIU) of a supplemental notice of petition and a supplemental petition under CPLR 403 (c) and 1003 (see, Matter of Allcity Ins. Co. [Guy], supra; Matter of American Sec. Ins. Co. v Stanley, supra). Rather the court merely directed the petitioner to mail to AIU, by regular and then by certified mail, a copy of its order joining AIU as a party and scheduling a framed issue hearing. Thus, proper service was never effected and jurisdiction was never obtained. Accordingly, the resulting default judgment is a nullity and must be vacated (see, DeMartino v Rivera, 148 A.D.2d 568, 569-570; Chase Manhattan Bank v Carlson, 113 A.D.2d 734, 735; Shaw v Shaw, 97 A.D.2d 403, 404; CPLR 5015 [a] [4]). Thompson, J.P., Santucci, Joy and Friedmann, JJ., concur.