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Mailing of Papers one day later than on affidavit Service defective

CURCIO v. DONNELLY
Tuesday, May 1, 2001
Supreme Court
Suffolk County
Justice Pitts
CURCIO v. DONNELLY — ORDERED, that the motion of respondent Jack J. Pellicano to dismiss the petition pursuant to CPLR 3211(a)(8) is granted.

This is a petition, commenced by Pasquale J. Curcio pursuant to Election Law §16-102, to invalidate a certificate of election of officers of the Suffolk County Conservative Committee, filed by respondents on or about October 2, 2000. The petition was commenced by order to show cause, wherein the signing Justice, Hon. Edward D. Burke, required that service be made upon respondents pursuant to CPLR 308(1), (2), or (4) “upon due diligence,” on or before October 12, 2000.

Respondent Pellicano, purportedly elected vice-chairman, moves for dismissal on the grounds that service of the petition was not properly made upon him.

The affidavit of service, executed by Christopher Michael Trombino on October 11, 2000, recites, inter alia, that Mr. Pellicano was served pursuant to CPLR 308(4), by “posting a true copy…to the defendant’s door” on October 7, 2000, and by placing a further copy “in a mailbox of the United States Post Office” (Petitioner’s Exhibit 6).

A traverse hearing was held on March 28 and 30, 2001.Petitioner relies upon the testimony of Mr. Trombino, who testified that he attempted service at respondent’s residence at 21 Kossuth Street, Deer Park, on October 5, 2000 at 2:45pm, on October 6, 2000 at 9:20am, and on October 7, 2000 at 6:05pm; that during each visit, he knocked loudly on the door; and that there was no answer during these initial visits. Mr. Trombino testified further that he returned on October 7 at 8:20pm; that again he knocked, without receiving a response; and that he affixed a copy of the petition and supporting documents to respondent’s front door using clear packing tape. Mr. Trombino admitted, however, that, contrary to his attestation in his affidavit of service, he did not actually mail the petition. Mailing, he stated, was the job of the “office manager” of Action Investigations, the company by which he is employed.

Action’s office manager, Anna Irizarry, testified on direct examination that the week “after” October 11th she placed a copy of the petition and supporting papers in an envelope addressed to respondent, ran it through the Pitney Bowes postage meter, placed it in her “out” box, and personally handed it to the “mailman” who visits the office daily. She could not recall the exact date, however. On cross examination, Ms. Irizarry was asked to examine the envelope which Mr. Pellicano received in the mail (Respondent’s Exhibit C), which contained the petition and supporting papers. Ms. Irizarry identified the handwriting as her own, and then admitted that the postage on the envelope was not obtained from the office Pitney Bowes meter, but rather, was a United States Postage sticker obtained at the Coram Post Office. Ms. Irizarry admitted that the postage sticker was dated October 13, 2000 and that she must have mailed the envelope and its contents on October 13, but that she had no independent recollection of having visited the Coram Post Office to mail the envelope.

Petitioner called respondent to testify on his direct case. Respondent testified that he was at home on October 5, 2000 during the time of Mr. Trombino’s alleged visit, but that he heard no knock, nor did he see anyone approach the front door. Respondent testified that he and his wife traveled upstate during the next couple of days, returning on October 8, 2000. Respondent testified that he found the petition and supporting papers (Respondent’s Exhibits E and F), lying on the concrete near his front door and that there was no tape attached to them.

It is axiomatic that petitioner herein has the burden of proving that service was properly made (see, Carfora v. Pesiri, 89 AD2d 237, 455 NYS2d 94 [2d Dept 1982]). Unfortunately, petitioner has failed in his burden.

Initially, petitioner is hampered by the severely-impaired credibility of Mr. Trombino, whose contradictory affidavit and testimony at the hearing permit this court to infer, pursuant to the doctrine of falsus in uno, that he neither taped the papers to the door nor made any attempt at service prior to leaving them at the house. In the absence of diligent attempts to effect personal service by the other means specified in the order to show cause, jurisdiction is not acquired (see, e.g. McGreevy v. Simon, 220 AD2d 713, 633 NYS2d 177 [2d Dept 1995]). Moreover, affixation is a mandatory component of service pursuant to CPLR 308(4), and the absence thereof deprives the court of jurisdiction (see, e.g. Walker v. Manning, 209 AD2d 691, 619 NYS2d 137 [2d Dept 1994]).

In addition, the contradictory testimony of Ms. Irizarry permits the inference that no one on behalf of Action, or on behalf of petitioner for that matter, placed the papers in the mail.

But even assuming, arguendo, that the affixing and mailing occurred, the documentary proof establishes that the mailing occurred on October 13, 2000. Though petitioner argues that CPLR 308(4) grants him 20 days from the affixing within which to complete the mailing, petitioner cites the rule that is applicable in a plenary action. This is a special proceeding, commenced pursuant to an order to show cause, wherein the date by which service was to be completed was specified.

It has been held in an election proceeding commenced pursuant to CPLR 308(2) that “[t]o complete service, petitioners were required to effectuate the two-step procedure set forth…by both delivery and mailing by [the date specified in the order]. The failure to do so rendered the service ineffective (see, Furey v. Milgrom, 44 AD2d 91, 92-93, lv denied 34 NY2d 517 [add. cite omitted] [emphasis in original])” (Zaretski v. Tutunjian, 133 AD2d 928, 929, 521 NYS2d 116 [3d Dept 1987]; see also, Zambelli v. Dillon, 242 AD2d 353, 661 NYS2d 268 [2d Dept 1997]).

In Zaretski, the papers were delivered to a person of suitable age and discretion within the time set by the order to show cause, but the mailing was, just as in the case at bar, one day late. This court sees nothing distinguishable in a nail-and-mail case. Accordingly, as the mailing at bar was not completed on or before October 12, 2000 as required by the order to show cause, service was defective, and the motion to dismiss must be granted.

This matter is set down for a conference and for further proceedings consistent with this order, at 2:00 pm on April 16, 2001. There shall be no adjournments.