Rapport Assoc., Ltd. v Berg & Duffy, Ltd. Liab. Partnership
Rapport Assoc., Ltd. v Berg & Duffy, Ltd. Liab. Partnership 2007 NY Slip Op 52250(U) [17 Misc 3d 1134(A)] Decided on November 28, 2007 Nassau Dist Ct Engel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on November 28, 2007
Nassau Dist Ct
Rapport Associates, Ltd., Plaintiff,
Berg and Duffy, Limited Liability Partnership, Defendant.
Attorneys for plaintiff: Rosenthal & Goldhaber, P.C.
Attorney for defendant: James P. Duffy, III, Esq
Andrew M. Engel, J.
The Defendant previously moved for an order dismissing this action, based upon its claim of lack of personal jurisdiction, and for a protective order with regard to Interrogatories served by the Plaintiff dated February 26, 2007. That motion resulted in the Decision and Order of this court (Engel, J.) dated May 10, 2007, setting the matter down for a traverse hearing on the question of service while holding the balance of the motion in abeyance.
A traverse hearing was conducted on November 1, 2007, at which time the Plaintiff’s process server, Jonathan Safran, testified on behalf of the Plaintiff and James P. Duffy, III testified on behalf of the Defendant.
Mr. Safran testified that he has been a process server for approximately twelve and one-half (12½) years and that he serves process approximately five (5) to six (6) days per week. He described his usual procedure for making service as reviewing the address provided to him and trying to find someone to serve at that address.
Mr. Safran testified that he had a recollection of having served some process on January 29, 2007 and had a specific recollection of the service made in this matter. Mr. Safran further testified that on the date of service he went to 33 South Service Road, Jericho, New York in an effort to effectuate service upon the Defendant. He recalled arriving at these premises and entering the building, which he described as a “cooperative office,” with multiple tenants sharing a lobby and a receptionist. Mr. Safran claims that he approached the receptionist, who he identified as Diane Hillaire, and was advised that there was no one in the Defendant’s office. Mr. Safran further claims that Ms. Hillaire then volunteered that she was authorized to accept service. Mr. Safran then left the summons and complaint with her.
James P. Duffy, III testified that Ms. Hillaire was not an employee of the Defendant’s, but was actually one of a number of part-time employees of Complete Suites, the Defendant’s landlord. Mr. Duffy further testified that Ms. Hillaire was not authorized to accept service of process for the Defendant; neither was she authorized to accept or sign for certified mail. According to Mr. Duffy the office maintained by the Defendant at 33 South Service Road, Jericho, New York was unoccupied and that he would pick up and sign for the Defendant’s certified mail at the post office.
CPLR § 310-a provides the method of service permissible upon this Defendant, a limited liability company. Salvatore v. Kumar, 12 Misc 3d 1157(A), 819 NYS2d 213 (S.C. Suffolk Co. 2006); Lamba v. Lasala, NYLJ, Oct. 19, 2001, p2, col 2 [Sup Ct NY Co]; Alexander, 2002 Supp. Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR 310-a, 2007 Pocket Part, at 35 That section provides, in pertinent part:
(a)Personal service upon any domestic or foreign limited partnership shall be made by delivering a copy personally to any managing or general agent or general partner of the limited partnership in this state, to any other agent or employee of the limited partnership authorized by appointment to receive service or to any other person designated by the limited partnership to receive process in the manner provided by law for service of summons, as if such person was the defendant.
The Plaintiff does not claim that Ms. Hillaire was a managing agent, general agent, general partner, or employee of the Defendant. Neither the Plaintiff, nor its process server, Mr. Safran, contest the Defendant’s representation that Ms. Hillaire was a part-time employee of the Defendant’s landlord. In fact, Mr. Safran testified that he never inquired of Ms. Hillaire what her relationship was to the Defendant, believing he was, for some unexplained reason, forbidden from asking. The Plaintiff does claim, however, that Ms. Hillaire was an “other agent” and/or “other person designated by the [Defendant] to receive process” based solely upon Mr. Safran’s testimony that Ms. Hillaire allegedly volunteered that she was authorized to accept service.
“It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action.” Bank of America National Trust & Savings Association v. Herrick, 233 AD2d 351, 650 NYS2d 754 (2nd Dept.1996) The Plaintiff must establish personal jurisdiction by a preponderance of the evidence adduced at the hearing. Kingsland Group, Inc. v. Pose, 296 AD2d 440, 744 NYS2d 715 (2nd Dept. 2002); Elm Management Corp. v. Sprung, 33 AD3d 753, 823 NYS2d 187 (2nd Dept. 2006); Balancio v. Santorelli, 267 AD2d 189, 699 NYS2d 312 (2nd Dept. 1999) A review of the Court of Appeals’ decision in Fashion Page, Ltd. v. Zurich Insurance Company, 50 NY2d 265, 428 NYS2d 890 (1980) demonstrates that the Plaintiff has not met that burden herein.
The question in Fashion Page, Ltd., id. was “whether a corporation was properly served [*3]pursuant to CPLR 311 (subd. 1)[FN1] when the process server delivered the summons to the vice-president’s secretary, who had been identified by the defendant’s receptionist and the secretary herself as a person authorized to accept service for the corporation.” Fashion Page, Ltd., id. 50 NY2d at 269, 428 NYS2d at 891 The essential facts in that case were that the plaintiff’s process server arrived at the defendant’s offices, advised the receptionist that he had papers to serve on the defendant and asked to whom he should deliver the papers. The process server was directed to proceed down a particular hallway and to ” see the girl sitting down there.'” Fashion Page, Ltd., id. 50 NY2d at 269, 428 NYS2d at 892 When the process server reached the end of the designated hallway he encountered the defendant’s vice-president’s secretary who, upon inquiry, indicated that she could accept the summons and complaint.
“In evaluating whether service is to be sustained, [the court cautioned] the circumstances of the particular case must be weighed.” Fashion Page, Ltd., id. 50 NY2d at 273, 428 NYS2d at 894 Upholding the service made upon the defendant’s vice-president’s secretary, as service upon “any other agent authorized by appointment or by law to receive service,” pursuant to CPLR § 311, the court found that the process server reasonably relied upon the receptionist to direct him to the proper person to receive process, once he announced his purpose, and that it was likewise reasonable for him to rely upon the representation of the vice-president’s secretary. In reaching this conclusion, the court noted that the receptionist was employed by the defendant to greet people and properly direct them; that her apparent knowledge of the proper procedure to be followed was confirmed by the vice-president’s secretary, who acknowledged her authority to accept service; that it was unlikely that two of the defendant’s employees would be unaware of the defendant’s procedure for accepting service of process, particularly where the defendant was an insurance company which must be involved in litigation on a regular basis; that the vice-president’s secretary testified that upon receipt of the summons and complaint she forwarded same to the defendant’s legal department upon the instruction of the vice-president, and that she had regularly done so, in other instances, without objection for at least five years.
The facts in the matter sub judice are readily distinguishable. As previously indicated, the Plaintiff does not argue that Ms. Hillaire was an employee of the Defendant’s; nor does the Plaintiff contest the Defendant’s representation that Ms. Hillaire was a part-time employee of the Defendant’s landlord, acting as a receptionist for the Defendant and other tenants. In fact, the Plaintiff’s process server himself testified that he was aware that the premises at which he attempted to make service was a “cooperative office,” with multiple tenants sharing a lobby and a receptionist. The process server, never attempted to determine if Ms. Hillaire was employed by the Defendant, nor was there any evidence that Ms. Hillaire, or any other communal receptionist, ever accepted service for the Defendant before.
As if addressing these very circumstances, and clearly distinguishing them from the facts [*4]presented in Fashion Page, Ltd., id., the Court of Appeals stated:
Delivering the summons to a building receptionist, not employed by the defendant, without any inquiry as to whether she is a company employee, would not be sufficient. Such service cannot be upheld even though the receptionist may later deliver the summons to the proper party. To sustain such service would encourage carelessness, or worse, thus increasing the risk of default by parties who in fact fail to receive the summons’ (McDonald v. Ames Supply Co., supra . 22 NY2d p. 116, 291 NYS2d p. 332, 238 NE2d p. 728). Nor is it always reasonable, under all circumstances, for the process server to rely on claims of authority made by the defendant’s employees.
Fashion Page, Ltd., id. 50 NY2d at 273, 428 NYS2d at 894; See also: Dewey v. Hillcrest General Hospital, 201 AD2d 609, 607 NYS2d 967 (2nd Dept.1994) [service upon an executive secretary, who agreed to accept service was invalid since she was not an employee of the defendant]; Todaro v. Wales Chemical Co., 173 AD2d 696, 570 NYS2d 595 (2nd Dept.1991) [service upon defendant’s manufacturing clerk and relief switchboard operator improper where there was no evidence he was actually authorized to accept service or anything to suggest he has ever accepted service of process for the defendant]; Weiss v. Glatt Pack Kosher, Inc., 138 AD2d 591, 526 NYS2d 174 (2nd Dept.1988) [service invalidated where there was no proof the defendant was avoiding service or that the process server made proper inquiry of the defendant’s own employees]; Hoffman v. Petrizzi, 144 AD2d 437, 534 NYS2d 11 (2nd Dept.1988) [receptionist’s statement that she would take the papers insufficient to sustain service where nothing in the record indicated she had ever previously accepted service for the defendant]; Simmons v. Boro Medical, P.C., 270 AD2d 477, 705 NYS2d 620 (2nd Dept. 2000) [service invalid where process left with an individual who never identified herself as an agent of the defendant and the process server made no inquiry as to her connection with the defendant].
Based upon all of the foregoing, this court does not find that the service herein was “made in a manner which, objectively viewed, [was] calculated to give the [defendant] fair notice ….” Fashion Page, Ltd., id. 50 NY2d at 272, 428 NYS2d at 894; see also: Methodist Hospital v. Perkins & Will Partnership, 203 AD2d 435, 610 NYS2d 572 (2nd Dept. 1994), notwithstanding the fact that the summons and complaint were ultimately found by the Defendant in its mailbox. Mortgage Access Corp. v. Webb, 11 AD3d 592, 784 NYS2d 116 (2nd Dept. 2004); Bankers Trust Co. of California, N.A. v. Tsoukas, 303 AD2d 343, 756 NYS2d 92 (2nd Dept. 2003); County of Nassau v. Letosky, 34 AD3d 414, 824 NYS2d 153 (2nd Dept. 2006)
Accordingly, that branch of the Defendant’s motion to dismiss due to the lack of personal jurisdiction is granted. That branch of the Defendant’s motion seeking a protective order is now moot.
Dated: Hempstead, New York
November 28, 2007
ANDREW M. ENGEL