New York Institute of Technology v. Allocca, 7199/06
Decided: April 4, 2007
Judge Andrew M. Engel
Attorney for Plaintiff: Eric Streich, PC
Attorneys for Defendant: Lang, Berman & Lebit, PC
The Defendant moves, by Order to Show Cause, for an order vacating a judgment entered against her, on default, on July 13, 2006, in the sum of $11,933.71. The Plaintiff opposes the motion.
The Defendant alleges that she only recently learned of this action and of the judgment against her when she received a telephone call from her mother who, in January 2007, had received, in the mail, a Property Execution addressed to the Defendant. The Defendant claims that she never received a copy of the Summons and Complaint herein.
The Defendant further alleges, and submits some documents in support thereof, that she paid her entire account with the Plaintiff, in full, and that the balance the Plaintiff shows as due and owing is the result of the Plaintiff’s own internal accounting error.
The Plaintiff alleges that proper service of the Summons and Complaint was made upon the Defendant, pursuant to CPLR §308(4). The Affidavit of Service of the Plaintiff’s process server indicates that he made four (4) attempts to serve the Defendant personally or by serving someone of suitable age and discretion, pursuant to CPLR §308(1) and (2). The first attempt was made on March 10, 2006 at 2:40 p.m.; the second was made on March 11, 2006 at 6:16 p.m.; the third was made on March 14, 2006 at 7:04 a.m.; and the last attempt was made on March 14, 2006 at 6:16 p.m. Each of these attempts was made at 224 Prospect Avenue, Cedarhurst, New York, which the Plaintiff’s process server alleges is “the defendant’s Dwelling Place.” The Affidavit of Service further indicates that on March 14, 2006 at 6:16 p.m a copy of the Summons and Complaint was affixed to the door of the aforesaid address; and, a copy was mailed to the Defendant, at this address, on the same date. Proof of service was then filed on March 21, 2006.
The Plaintiff further alleges that the Defendant lacks a meritorious defense, as the documentation the Defendant submits is incomplete, inaccurate and covers periods of time not involved in this action.
Whether or not the Defendant has stated a meritorious defense, a judgment will be vacated where service was not proper and personal jurisdiction was never obtained over a defendant. Cartier v. County of Nassau, 281 A.D.2d 447, 722 N.Y.S.2d 45 (2nd Dept. 2001); McMullen v. Arnone, 79 A.D.2d 496, 437 N.Y.S.2d 373 (2nd Dept. 1981)
CPLR §308(4) makes clear that substituted service may only be made “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 . . . .” The Defendant alleges that she was residing at 4002 Ocean Avenue, Apartment O, East Rockaway, New York at the time the service herein was allegedly effectuated. Moreover, the Defendant alleges that she never lived at 224 Prospect Avenue, Cedarhurst, New York, the address where service was allegedly made, which she acknowledges is her mother’s residence.
In response, the Plaintiff submits two (2) Requests For Change of Address or Boxholder Information Needed for Service of Legal Process, wherein the United States Postal Service indicated that, on February 2, 2006 and on January 26, 2007, the Defendant received mail at 224 Prospect Avenue, Cedarhurst, New York. While the Defendant’s receipt of mail at this address may be some indicia that this is her “dwelling place or usual place of abode,” it may also only indicate that she receives mail at her mother’s house. The Plaintiff does not submit any other evidence that the Defendant dwelt at 224 Prospect Avenue, Cedarhurst, New York at the time service was allegedly made.
Even more problematic for the Plaintiff is the well established principle that a plaintiff may only resort to service pursuant to CPLR §308(4) where service pursuant to CPLR §308(1) or (2) cannot be made with due diligence. County of Nassau v. Letosky, 34 A.D.3d 414, 824 N.Y.S.2d 153 (2nd Dept. 2006); Lemberger v. Kahn, 18 A.D.3d 447, 794 N.Y.S.2d 416 (2nd Dept. 2005); Walker v. Manning, 209 N.Y.S.2d 691, 619 N.Y.S.2d 137 (2nd Dept. 1994); Scott v. Knoblock, 204 A.D.2d 299, 611 N.Y.S.2d 265 (2nd Dept. 1994).
As previously indicated, three (3) of the Plaintiff’s attempts at service herein were made on weekdays, “during normal business hours or when it could reasonably have been expected that [s]he was in transit to or from work (citations omitted).” Earle v. Valente, 302 A.D.2d 353, 754 N.Y.S.2d 364 (2nd Dept. 2003); see also: O’Connell v. Post, 27 A.D.3d 630, 811 N.Y.S.2d 441 (2nd Dept. 2006); Gantman v. Cohen, 209 A.D.2d 377, 618 N.Y.S.2d 100 (2nd Dept. 1994) The fourth attempt was made on a Saturday evening, which may have had a greater likelihood of success, but was also at a time when it could have reasonably been anticipated that the Defendant would not be at home and was insufficient to demonstrate due diligence. Bleier v. Heschel, 128 A.D.2d 662, 512 N.Y.S.2d 902 (2nd Dept. 1987). Moreover, “[t]he affidavit of the plaintiff’s process server, together with the papers submitted in opposition to the [Defendant’s] motion, failed to demonstrate that the process server attempted to ascertain the [Defendant’s] business address and to effectuate personal service at that location, pursuant to the provisions of CPLR 308(1) and (2).” Gurevitch v. Goodman, 269 A.D.2d 355, 702 N.Y.S.2d 634 (2nd Dept. 2000); see also: County of Nassau v. Yohannan, 34 A.D.3d 620, 824 N.Y.S.2d 431 (2nd Dept. 2006); Moran v. Harting, 212 A.D.2d 517, 622 N.Y.S.2d 121 (2nd Dept. 1995)
Having failed to demonstrate the exercise of due diligence before attempting service pursuant to CPLR §308(4), the court never acquired personal jurisdiction over the Defendant; the judgment entered against her is a nullity and must be vacated, Harkless v. Reid, 23 A.D.3d 622, 806 N.Y.S.2d 214 (2nd Dept. 2005); New York and Presbyterian Hospital v. Dollar Rent-A-Car Systems, Inc., 295 A.D.2d 488, 744 N.Y.S.2d 859 (2nd Dept. 2002), and the action dismissed. Feinstein v. Bergner, 48 N.Y.2d 234, 422 N.Y.S.2d 356 (1979)
Accordingly, the Defendant’s motion to vacate the judgment entered against her on July 13, 2006 is granted and the action is dismissed.
All other matters not decided herein are hereby denied
This constitutes the decision and order of this court