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Due Diligence not satisfied by sub service at address different than was on complaint

Jones Inlet Marina Inc. v. Kanter
District Court

Judge Cooper

This is an application by the defendant to vacate a money judgment entered against him on December 9, 2002. The application was made by Order to Show Cause (CPLR §403[d]) dated August 6, 2003, and returnable August 25, 2003. Attached to the defendant’s Order to Show Cause and Supporting Affidavit was an Affidavit of Service which demonstrated service of the Order to Show Cause and supporting affidavit on the plaintiff at 299 Brower Avenue, Rockville Centre, New York.

The plaintiff did not file any papers or pleadings in opposition to the defendant’s application to vacate the December 9, 2002 money judgment entered on default of the defendant.

The motion was taken on submission on August 25, 2003 in First District Court, Civil Part 1. On October 15, 2003, Judge Fairgrieve issued an interim written decision and order. By the October 15, 2003 interim decision and order, the defendant’s unopposed application was granted pursuant to CPLR §5015(a)(4) to the extent of scheduling the case for a traverse hearing on November 26, 2003 at 9:30 a.m.

This court conducted a traverse hearing of the matter on November 26, 2003 to determine whether the defendant was properly served pursuant to CPLR §308(4), and to determine whether the court had “in personam” jurisdiction over the defendant. Finally, the court had to determine whether the December 9, 2002 default judgment should be vacated. Both parties were represented by counsel at the hearing. At the conclusion of the hearing, this court granted both parties’ application to submit post hearing memoranda of law. The defendant was given until December 10, 2003 to submit its Memorandum of Law as it was the moving party, and the plaintiff was given until December 24, 2003 to submit its Memorandum of Law (the court was closed for the Christmas Holiday).

The plaintiff submitted its post hearing memorandum on December 10, 2003 and the defendant submitted its post hearing memorandum initially to the Hon. Scott Fairgrieve on December 26, 2003 (both parties’ submissions were the reverse of the court’s order and as reflected on the flie by the clerk’s endorsement. This court not having received the defendant’s memorandum timely, had its secretary inquire of the defendant as to the whereabouts of its memorandum. In response to the latter inquiry, the defendant facsimiled a copy of its memorandum to this Court on January 5, 2003.

The Parties’ Arguments

Defendant’s Argument

The defendant/movant in its post traverse hearing memorandum, which cites no cases or statutes or principles of law, argues very succinctly that the plaintiff attempted to serve the defendant pursuant to CPLR §308(4) with the summons and complaint at 299 Brower Avenue, Rockville Centre, New York which was not the defendant’s actual place of business, dwelling place or usual place of abode. Further, that the affidavit of service reveals that the mailing of the summons and complaint pursuant to CPLR §308(4) was not the defendant’s “last known residence”. The plaintiff’s failure to comply with CPLR §308(4) deprived the court of “in personam” jurisdiction over the defendant, and therefore, the resulting default judgment at December 9, 2002 must be vacated.

The defendant by its memorandum argues further, that the defendant’s unopposed affidavit on its motion pursuant to CPLR §5015(a)(4) and the defendant’s testimony at the traverse hearing was sufficient to establish that the 299 Brower Avenue address was not the defendants actual place of business, dwelling place or actual place of abode. Nor was the latter address the defendant’s last known address. The defendant argues that his known actual place of residence and dwelling and last known address was 336 South Ocean Ave, Freeport, New York, on September 9, 2002, when the plaintiff attempted service of process pursuant to CPLR §308(4).

Further, the defendant argues, the complaint which was prepared a week prior to the September 9, 2002 attempted service, listed the defendant’s address as 336 South Ocean Avenue, Freeport. Furthermore, the defendant argues, that the billing statement of the plaintiff which is the subject of the plaintiff’s complaint (Deft.’s Exh. F on the motion) also lists the defendant’s address at 336 South Ocean Avenue, Freeport. The defendant goes on to argue, the plaintiff’s sole witness who testified at the hearing, the process server, testified that after one failed attempt at personal delivery on the defendant at 336 South Ocean Avenue, Freeport, he received a notice from his employer to attempt service at the 299 Brower Avenue address without any explanation. The defendant in its memorandum also argues, that neither the process server’s testimony nor the plaintiff evidence at the hearing established the 299 Brower Avenue address as the defendant’s “last know address.”

The defendant also avers in its memorandum that the defendant’s testimony at the hearing established that the defendant had not resided at the 299 Brower Avenue address since the year 2001, when he moved out permanently pursuant to a Separation Agreement; and that he never received a summons and complaint by mail or otherwise related to this action. The defendant by its memorandum argues, the plaintiff concluded the traverse hearing without putting in any evidence to support any “good cause” for service at the 299 Brower Avenue address. Further, the plaintiff did not put forward any reason for not continuing or for discontinuing any attempt at service at the 336 Ocean Avenue address in Freeport. The defendant’s memorandum also raised the issue as to why the affidavit of service of the summons and complaint (Deft.’s Exh. A in Evid.) by the process server, did not recited the initial attempt at personal delivery at 336 South Ocean Avenue as testified to by the process server.

Finally, the defendant in its’ memorandum argues, that the defendant move out of the 299 Brower Avenue address in 2001, and established his residence at 336 South Ocean Avenue, Freeport, New York long before the commencement of this action. That the defendant gave the plaintiff his 336 South Ocean Avenue, Freeport address prior to the commencement of this action. That all court process and pleadings and motion papers and exhibits reflect the defendant’s address at 336 South Ocean Avenue, Freeport. Further, that the plaintiff has offered no evidence to establish a basis for the Rockville Centre address being the “last known address” of the defendant for purposed of CPLR §308(4). The defendant request that this court vacate the December 9, 2002 default judgment in its entirety.

Plaintiff’s Argument

The plaintiff in its post Traverse Memorandum argues (in an attempt to frame the legal issue), that the issue is whether there is a requirement that the proponent of service pursuant to CPLR §308(4) “must demonstrate a good faith independent basis for the address utilized in the affidavit of service where such address is inconsistent with the address in the complaint in the underlying action. The plaintiff’s memorandum goes on to argue, the process server’s testimony at the traverse hearing established that an attempt at personal delivery was attempted on September 3, 2002 at 336 South Ocean Avenue, Freeport, New York.

Further, the plaintiff’s memorandum argues, the defendant admitted 299 Brower Avenue was his last known address, at the traverse hearing, on the date of serve of process September 9, 2002. Furthermore, the plaintiff’s memorandum argues, that 299 Brower Avenue, Rockville Centre was listed with the U.S. Postal Services as the defendant’s mailing address on September 9, 2002. The plaintiff argues by way of its memorandum, that CPLR §308(4) permits substituted service by “affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode of the person to be served” and by “mailing the summons to such person at his last known residence”. The plaintiff in its memorandum cites Smithtown General Hospital v. Quinlivan, 88 Misc2d 1031, 389 NYS2d 776 (Suffolk County District Court, 1976).

Finally, the plaintiff argues, in its memorandum, that CPLR §308(4) has no requirements or supporting case law requires that the address utilized in the complaint to be consistent with the address ultimately utilized for service of process. That the proponent of service need only comply with CPLR §308(4), and that an address used for service which is inconsistent with that in the complaint is of no consequence.

Findings of Fact and Conclusionsof Law

This court makes the following findings of fact and conclusions of law. The court finds the defendant Matthew Kanter was a resident of 300 Woodcleff Avenue, Freeport, New York on the date of the traverse hearing. The court finds further, that on September 9, 2002, the date of the plaintiff’s attempted service on the defendant, the defendant resided at 336 South Ocean Avenue, Freeport, New York. Furthermore, the court finds the defendant had resided at 299 Brower Avenue, Rockville Centre, New York with his wife and children until October 2001, when pursuant to a written separation agreement he moved out. The court finds the defendant established a separate residence at 336 South Ocean Avenue, Freeport, New York after October 2001, and was a resident of the latter address on September 9, 2002.

The court also finds the defendant notified the plaintiff of his 336 South Ocean Avenue address on March 12, 2002 as evidence by Invoice number 2592 (Deft.’s Exh. F on the motion). The court finds this very invoice number 2592 forms a part of the basis of the plaintiff’s cause of action for services rendered. The court finds in the Summons and Verified Complaint in this action, the plaintiff listed the defendant’s address as 336 South Ocean Avenue, Freeport, New York and while the Verified Complaint is undated, the Summons is dated August 23, 2002, more than two weeks prior to the plaintiff’s attempted service on the defendant pursuant to CPLR §308(4).

Based on the credible evidence adduced at the traverse hearing on November 26, 2003, the plaintiff had business dealings with the defendant subsequent to March 12, 2002, and was made aware by the defendant that the defendant’s resident address was not 299 Brower Avenue, Rockville Centre, New York, but 336 South Ocean Avenue Freeport. Further, the court finds there is no evidence in the record to demonstrate the defendant ever filed a change of address form with respect to the 299 Brower Avenue address. However, the record does demonstrate that the defendant was under an obligation pursuant to a separation agreement not to file a change of address notice with the U.S. Postal Service. Furthermore, the court finds there is not one scintilla of evidence in the record to demonstrate that the defendant ever received a copy of the summons and verified complaint which the plaintiff cause to have been served (in a generic sense and not in a legal sense) at 299 Brower Avenue, Rockville Centre, New York.

The court finds, that although the defendant provided the plaintiff with his 336 South Ocean Avenue address at least as early as March 12, 2002, and the process server testified that he initially attempted personal delivery on the defendant at the latter address, the plaintiff’s affidavit of service (Deft.’s Exh. A in Evid.) does not recite any attempt at person delivery of the summons and verified complaint at the 336 South Ocean Avenue, Freeport, New York. The plaintiff’s process server testified at the traverse hearing that he made his initial attempt at personal delivery (see, CPLR §308[1]) of the summons and verified complaint on September 3, 2002 at 336 South Ocean Avenue, Freeport, New York. The process server went on to describe the premises as a residential home converted to commercial use on the first landing to attorneys’ offices. The process server did not describe the remainder of the premises, as the defendant did. The defendant testified credibly that the structure while containing attorneys offices, also contained residential space on the upper floor where he resided. The court finds the process server testified that as a result of his investigation at the 336 South Ocean Avenue address on September 3, 2002, he learned that the defendant did not work or live there. However, the court finds the process server was unable to identify the specific, and particular source of his knowledge. Consequently, this court discredits the latter portion of the process server’s testimony with regard to the unsubstantiated knowledge that the defendant did not reside at 336 South Ocean Avenue.

The court also finds the plaintiff through its sole witness, the process server, offered no evidence of any reason to believe that the defendant could have been served at the 299 Brower Avenue address since it was inconsistent with the address listed in the summons and verified complaint.

The court does find that the plaintiff’s process did initiate serve at 299 Brower Avenue, Rockville Centre on September 6, 2002, and that several subsequent attempts were made on September 7 and 9, 2002. [Deft.’s Exh. A in Evid.].

Issues of Law

The defendant by its application pursuant to CPLR §5015(a)(4) moves for an order of this court to vacate the default money judgment of December 9, 2002 entered on its default. The default judgment relies on service pursuant to CPLR §308(4) by alleging the service made by the plaintiff with respect to the December 9, 2002 default judgment did not comply with CPLR §308(4), and therefore, the court did not obtain “in personam” jurisdiction over the defendant, and consequently, the default judgment must be vacated and the complaint dismissed. The defendant also argues, although neither party articulated it, that the plaintiff failed to exercise “due diligence” as required by CPLR §308 in the service of process.

The Law

“At the outset it should be noted that it is the ‘dwelling place’ or usual place of abode’ which determines where the summons and complaint may be served and not the defendant’s domicile or residence. Smithtown General Hospital v. Quinlivan, supra.

Pursuant to CPLR §308 service of process on a natural person in a civil suit must be effected by:

“Personal service upon a natural person shall be made by any of the following methods:

1. By delivering the summons within the state to the person to be served, or

4. where service under paragraph one and two cannot be made 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”.

“It has been held that a ‘dwelling place’ or ‘usual place of abode’, in connection with the service of process means the actual dwelling place or usual place of abode of the defendant at the time of service. (Viking Jr. Band v. Haakon Fretheim, Inc., 46 Misc 2d 1042). “Usual place of abode has been defined as the place that a person usually (not necessarily continuously) abides, sojourns or temporarily stays as a temporary resident or stranger. (Rich Prods. Corp. v. Diamond, 51 Misc 2d 675). ‘Usual place of abode’ connotes permanency, i.e., the place, aside from the temporary absences, where the party actually lives (1 Weinstein-Korn-Miller, NY Civ Prac, par 308.13). ‘Dwelling house’ has been defined as the house in which a person dwells, lives or abides (Rich Prods. Corp. v. Diamond, supra). It is apparent that ‘dwelling place’ connotes a place (not necessarily a house) in which a person dwells, lives or abides.” Smithtown General Hospital v. Quinlivan, supra at 1033.

Admissible proof adduced at trial or an evidentiary hearing to the effect that the dwelling house to which the process server had affixed a copy of the summons and complaint and to which he had mailed the summons and compliant pursuant to CPLR §308(4) was not at the time the place where the defendant resided, would make such service invalid and “in personam” jurisdiction would never have been obtained by the court over the defendant (see, Jeannine De Capua, an Infant by Her Parents and Natural Guardian, Hope Schlesing, et al v. John Morrissey, 67 AD 2d 832, 413 NYS 2d 69 (1979); Community State Bank v. Paul Haakonson, 94 AD 2d 838, 839 (1983). “The ‘nail and mail’ provision of the CPLR permits a plaintiff to mail duplicate process to the defendant at his last known resident, but clearly requires that the ‘nailing’ be done at the defendant’s actual place of business, dwelling place or usual place of abode. While there may be some question as to whether there is a distinction between ‘dwelling place’ and ‘usual place of abode’, there has never been any serious doubt that neither term may be equated with the ‘last known residence’ of the defendant (Chalk v. Catholic Medical Center of Brooklyn & Queens, 58 AD 2d 822; Polansky v. Paugh, 23 AD 2d 643; Entwistle v. Stone, 53 Misc 2d 227; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 308:4, 208; see, Siegel, New York Practice §72, p. 78). Indeed, there are cogent reasons for preserving the distinction apart from the obvious principle that where the Legislature has used different words in a series, the words should not be construed as mere redundancies (see, McKinney’s Cons. Laws of NY, Book 1, Statues §231″. Michele Feinstein, etal v. Bergner, 48 NY2d 234, 239, 422 NYS 2d 356 [1979] ” . . . [w]here the defendant’s actual residence is known (see, Siegel, New York Practice, §72 at pp 77-78) the plaintiff should make service at that address. Indeed, in cases where the defendant’s residence is known, the actual dwelling place and the last known residence would be the same location by definition” Michele Feinstein, etal v. David Bergner, supra at 241. Notice of process on a defendant by any other means other than those provided and authorized by statute cannot serve to bring the defendant within the personal jurisdiction of the court (see, i.e., McDonald v. Ames Supply Co, 22 NY2d 111; Michele Feinstein, etal v. David Bergner, supra at 241. Where there is no evidence of any reason to believe that the defendant could be served at his former marital address, service at that address without explanation would not be considered the exercise of due diligence on the plaintiff (see, In the Matter of A. Alexander Jacoby v. New York State Board for Professional Medical Conduct, 743 NYS 2d 192; CC Home Lenders v, Cioffi, 742 NYS 2d 101, 102, 294 AD 2d 325 [2002]).

Conclusion

Here, the defendant has established by the credible evidence that plaintiff had been apprised of his residence and permanent address as demonstrated by the billing that forms the basis of this law suit which reflects the defendant’s address as 336 South Ocean Avenue, Freeport, New York. The plaintiff’s own summons and Verified Complaint, which reflect the defendant’s address as 336 South Ocean Avenue demonstrates the plaintiff’s knowledge. This process was prepared by the plaintiff’s attorneys prior to the commencement of the within law suit, and the testimony of the plaintiff’s process server who testified that he made an undocumented initial attempt at personal delivery of process at the 336 South Ocean Avenue address just prior to his documented attempt at service at the 299 Brower Avenue, Rockville Centre address. Where the plaintiff has knowledge of the defendant’s actual residence, service of process should be made at that address. Michele Feinstein, etal v. Bergner, supra at 241. Pursuant to CPLR §308(4) where the plaintiff is unable to effect service of process on the defendant by personal delivery (1) or on a person of suitable age and discretion after due diligence they are permit to make service by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode. CPLR §308(1), (2) and (4). Here, the plaintiff’s process server attempted personal delivery initially at the defendant’s known dwelling place of 336 South Ocean Avenue, Freeport on September 3, 2002; however, without documenting this attempt, and then without explanation attempted service at an address which the court finds was neither the defendants’ actual place of business, dwelling place or usual place of abode. This address 299 Brower Avenue, Rockville Centre, which had been the defendant’s former marital residence, was not on September 6 through 9, 2002, the place where the defendant resided. It was not the actual dwelling place or the usual place of abode for the defendant. It thus appears that the service at 299 Brower Avenue, Rockville Centre was invalid and “in personam jurisdiction” was never obtained over the defendant. Jeannine De Capua, an Infant by Her Parents and Natural Guardian, Hope Schlesing, et al v. John Morrissey, supra; Community State Bank v. Paul Haakonson, supra.

The court finds the proponent of service has the burden of demonstrating service was completed in accordance with the particular service statute for the action or special proceeding. In the case at bar, CPLR 308(4) is controlling; and while there may be some question as to whether there is a distinction between dwelling place and usual place of abode, there has never been any serious doubt that neither term may be equated with the last known residence of the defendant. Michele Feinstein, etal v. Bergner, supra. The plaintiff’s affidavit of service of the summons and verified complaint attest to affixing the process to a private house at 299 Brower Avenue, Rockville Centre, New York as the defendant’s “last known address”, and mailing a duplicate copy to the same address. The court finds the plaintiff’s process server affixing the summons and verified complaint to the defendant’s last known address was legally insufficient to confer “in personam” jurisdiction on the court over the defendant. Michele Feinstein, etal v. Bergner, supra, especially where the plaintiff had knowledge of the defendant’s actual resident address. The plaintiff should have made service at the defendant’s know actual resident address. Michele Feinstein, etal v. Bergner, supra. Personal jurisdiction not having been acquired, the subsequently granted default judgment of December 9, 2002 was a nullity. Community State Bank v. Paul Haakonson, supra. Inasmuch as the plaintiff did not comply with CPLR §308(4) in effecting personal jurisdiction over the defendant, the default judgment of December 9, 2002 is a nullity and is hereby vacated. Further, the defendant’s motion pursuant to CPLR §5015(a)(4) is granted in its entirety and the complaint is dismissed for failure of proper service on the defendant pursuant to CPLR §308(4). All orders and notices of restraint with respect to the defendant’s bank and financial accounts are hereby vacated.

This is the decision and order of this Court.

So ordered.