Pare v. Moore
IA PART 15
Pare v. Moore —The defendant moves, pursuant to CPLR 3211(a), to dismiss the complaint for lack of personal jurisdiction on the grounds of plaintiff’s failure to serve the summons with notice within 120 days of filing pursuant to CPLR 306-b; and/or 2) plaintiff’s failure to serve timely the complaint upon demand pursuant to CPLR 3012(b).
Plaintiff attorney, proceeding pro se, cross moves for an order extending her time to serve the complaint. Alternatively, plaintiff seeks an order excusing the two-week delay and/or default of the service of the complaint.
Plaintiff commenced this action to recover damages against defendant for slander and tortious interference with contract. In her complaint, she alleges that defendant told two of her clients that she had committed malpractice in her representation of them in a medical malpractice case. Plaintiff further alleges that defendant successfully induced her clients to terminate their retainer agreement with her.
Plaintiff commenced this action by filing a summons with notice on January 7, 2000. On April 27, 2000, plaintiff’s process server went to defendant’s business address and was directed by the doorman to proceed to the Messenger Center, which was located in the basement of the building, to serve the summons (Caballero Aff., ¶3). The process server delivered the summons to Terrence Smith, who was the Messenger Center’s supervisor (Id.). Thereafter, the process server mailed the summons to defendant to his business address.
On May 16, 2000, defendant, by his counsel, served a demand for complaint by mail pursuant to CPLR 3012(b). On June 28, 2000, defendant’s counsel received a copy of the complaint by priority mail.
Defendant argues that under CPLR 308 Mr. Smith is not a “person of suitable age and discretion” to whom the process server may deliver the summons, and, given that plaintiff’s time to serve the summons has expired, she has failed to serve timely, pursuant to CPLR 306-b, the summons. As such, defendant contends that personal jurisdiction over him has not been acquired. The argument is unavailing.
That Mr. Smith was not authorized to accept service of process is not the determinative factor under the “suitable age and discretion” clause of CPLR 308 (see, Charnin v. Cogan, 250 AD2d 513, 517-518 [1st Dept 1998]). Instead, service has been upheld as valid in circumstances where access to the premises is denied outright or because the individual to be served is unavailable, and “the job of the individual [served] includes taking messages and accepting deliveries, and such person may reasonably be expected to convey the message or papers to the intended party” (Id. at 517-518).
In his affidavit, Mr. Smith states, inter alia, that: [t]he policy of the building which is strictly enforced is that when persons come to the building to serve legal papers to a tenant or an individual of a tenant, we are required to call upstairs to the individual or tenant named in the papers and that individual or a representative of the tenant must come down and accept service; [i]n the event that such person or representative does not come down, the person who is attempting to serve legal papers is informed that we are not authorized to accept legal papers for anyone in the building and they can leave the papers if they want but we are not responsible for them. Of course, we deliver any papers that are left with us; (Smith Aff. [Hart Affirm., July 11, 2000, Ex. B], ¶¶5-6 [emphasis added]). Mr. Smith further states that: [o]n April 27, 2000 at approximately 1:20 p.m. an individual came to deliver legal papers to [defendant] Thomas Moore. As per procedure, I called Mr. Moore and was told that he was not there. When I informed this individual that Mr. Moore was not available he told me that he was told to deliver the papers and just left them on the table despite the fact that I told him I could not accept service. Those papers were brought up to Mr. Moore’s office sometime thereafter.
(Id., ¶7). In fact, defendant acknowledges that he saw the summons for the first time on his desk on May 3, 2000 (Moore Affirm. [Moving Papers, Ex. B], ¶3).
Based on the defendant’s unavailability on April 27, the building’s policy of restricting access to its premises, Mr. Smith’s customary responsibilities, and the circumstances surrounding the service of the summons, the Court finds that Mr. Smith is a “person of suitable age and discretion” to whom the process server properly delivered the summons.
Defendant’s contention that the mailing requirement of 308 was not complied with because the mailing was misaddressed is equally unavailing. Here, the mailing indicates defendant’s proper address, except that it bears the notation “BASEMENT.” Inclusion of that notation is not fatal to plaintiff’s compliance with CPLR 308’s mailing requirement given that the “BASEMENT” is where all mail (with or without that notation) is directed for sorting and delivery to the building tenants, such as defendant (see, Smith Aff., supra, ¶3). In fact, defendant acknowledges receipt of the mailing on May 11, 2000 (Moore Affirm., supra, ¶4).
Accordingly, based on the foregoing, this Court finds that personal jurisdiction has been acquired over defendant.
Defendant’s alternative argument that the complaint should be dismissed because plaintiff did not timely serve the complaint pursuant to CPLR 3012(b) is unpersuasive. The record clearly demonstrates that plaintiff’s two week delay in timely serving the complaint was due to law office failure, which is deemed a reasonable excuse in setting aside the delay (see, Wess v. Olympia and York Realty Corp., 201 AD2d 365 [1st Dept 1994]).1 As to the merits of plaintiff’s claims, for the purposes of determining excusable default, her affidavit adequately establishes the merits of those claims (see, A&J Concrete Corp. v. Arker, 54 NY2d 870, 872 ; Stevens v. Stevens, 165 AD2d 780, 781-782 [1st Dept 1990]). Of course, that is not to say that such claims will survive a motion for summary judgment.
Accordingly, defendant’s pre-answer motion to dismiss the complaint is denied. Defendant is directed to serve an answer to the complaint within 10 days after service of a copy of this order with notice of entry. Plaintiff’s cross-motion is denied as moot.
This constitutes the decision and order of the Court.