Opinion
March 20, 1995
Appeal from the Supreme Court, Queens County (Milano, J.).
Ordered that the judgment is affirmed, with costs.
The petitioner commenced this proceeding to challenge an order of the New York State Department of Labor's Industrial Board of Appeals (hereinafter the IBA), which, after a hearing, upheld a determination of the Commissioner of Labor that the petitioner had violated Labor Law § 193 by, among other things, deducting certain expenses from its employees' paychecks. The Department of Labor (hereinafter the DOL) moved to dismiss the petition on the ground that the IBA was not personally served. Following a hearing on the issue of service, the Supreme Court determined that the IBA was personally served by delivery of a copy of the papers to an employee of the DOL who indicated that she could accept service for the IBA. The court dismissed the proceeding, however, on the ground that the DOL was a necessary party and was not properly served.
It is undisputed that only one copy of the petition and supporting papers was delivered by the process server to the DOL employee. We agree with the Supreme Court that personal service on the IBA did not confer jurisdiction over the DOL (see, Matter of Dawn Joy Fashions v. Commissioner of Labor of State of N.Y., 181 A.D.2d 968; see also, Raschel v Rish, 69 N.Y.2d 694). The petitioner failed to establish that delivery of the papers to a director of the DOL by Federal Express overnight mail met the statutory requirements for service on the DOL (see, CPLR 312-a, 307; LaFrance v. State of New York, 147 A.D.2d 985; Hodge v. State of New York, 158 Misc.2d 438; see also, Matter of Figaro v. New York State Local Retirement Sys., 203 A.D.2d 678). Because the DOL was a necessary party to this proceeding and was not properly served, dismissal of the petition was proper (see, Matter of Dawn Joy Fashions v Commissioner of Labor of State of N.Y., supra). O'Brien, J.P., Ritter, Santucci and Friedmann, JJ., concur.