Meltzer, Lippe, Goldstein & Schlissel, P.C. v. Brown
The Court automatically adjourns all motions that are submitted without opposition for one month, whether or not there was either an administrative delay or excusable neglect. Such adjournment is made without prejudice to the moving party to have the merits of such an adjournment considered in the event that there is a subsequent submission.
This is an action for breach of contract based upon the alleged failure of defendant to pay fees and disbursements, in the principal amount of $55,085.07, incurred in connection with legal services rendered by plaintiff. Plaintiff now moves for a default judgment pursuant to CPLR §3215 on the grounds that defendant has not answered or appeared in this action.
To obtain a judgment on default, plaintiff must file proof of service of the summons and complaint and proof by affidavit, made by the party, of the facts constituting the claim, the default and the amount due. CPLR §3215(f). In support of this motion, plaintiff submits an affidavit of service testifying to delivery of the summons and complaint to the doorman of defendant’s apartment building, and additional service by regular mail. The question is whether this satisfies the requirements of CPLR §308(2).
CPLR §308(2) provides for service by delivery to a “person of suitable age and discretion” at the “actual place of business, dwelling place, or usual place of abode” of the person to be served. The Court of Appeals has determined that a doorman of an apartment building can be a suitable person, where it does not appear that his duties are other than those of a regular apartment house doorman; i.e., to screen callers, to announce visitors and to accept messages and packages for delivery to tenants. F.I. duPont, Glore Forgan & Co. v. Chen, 41 NY2d 794. The duPont case seems to articulate a rebuttable presumption that the doorman’s duties are the usual ones. “[S]o long as the record does not reveal that the duties of the particular doorman in question varied from the usual duties of such an individual . . . then a doorman may qualify” as a suitable person for purposes of CPLR §308(2). Charnin v. Cogan, 250 AD2d 513. In the instant case, there is no evidence in the record to suggest that the doorman’s duties were other than the usual ones, or that the doorman was not of suitable age and discretion.
The crucial issue then becomes whether service upon the doorman, presumably in the lobby of the building, constitutes service at the defendant’s “actual dwelling place”. The general rule is that “the ‘actual dwelling place’ or ‘usual place of abode’ of a tenant in a multiple dwelling is the apartment of the tenant.” Roldan v. Thorpe, 117 AD2d 790. However, service upon a doorman in the apartment house lobby has been upheld where the process server has been denied access to the apartment of the person to be served. See F.I. duPont, Glore Forgan & Co. v. Chen, supra. In such circumstances, “the outer bounds of the actual dwelling place must be deemed to extend to the location at which the process server’s progress is arrested.” Id. at 797.
The plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made. Vito M. Fosella Builders & General Contractors, Inc. v. Silver, 208 AD2d 525. The requirements of CPLR §308(2) are to be strictly construed. Foster v. Cranin, 180 AD2d 712. Courts have found substituted service at locations other than the tenant’s apartment to be inadequate where the plaintiff failed to show that the process server sought permission or made persistent effort to gain access to defendant’s apartment, and was denied entry or was otherwise barred from the premises. See Soils Engineering Services, Inc., 258 AD2d 425; McCormack v. Goldstein, 204 AD2d 121; Biological Concepts, Inc. v. Rudel, 159 AD2d 32.
In the instant case, the record is silent with respect to the circumstances of service. There is no evidence that the process server was denied entry to the building and could not have served defendant, or another person of suitable age and discretion, at defendant’s apartment. Thus, plaintiff has not met its burden of showing that defendant was served at her “actual dwelling place,” as that term has been strictly construed. Accordingly, the relief requested by plaintiff cannot be granted on the existing record.
The Court further notes that, as proof of its claim, plaintiff has submitted an affidavit made by a party with personal knowledge, a copy of the retainer agreement and a print out of bills and correspondence sent to defendant. However, defendant’s signature is not on the copy of the agreement submitted to the Court. Rather, this copy appears to have been initialed on defendant’s behalf by someone else. (The signature line is marked: “/s/ RB”.) Accordingly, although there is evidence of work performed and costs incurred on defendant’s behalf, there is inadequate evidence that defendant agreed to the terms set forth in the retainer. Therefore, plaintiff’s claim cannot be determined on the record herein.
Based upon the foregoing, it is
ORDERED, that plaintiff’s motion for a default judgment pursuant to CPLR §3215 is denied, with leave to renew upon proper proof.
Plaintiff shall serve a copy of this Order with Notice of Entry upon defendant, forthwith upon receipt from any source.