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Traverse Hearing Ordered | Affidavit did not address manner of service

Raymond v. Marchand, 13413/08
Decided: January 23, 2009
Justice Robert J. Miller

Supreme Court

The plaintiff is represented by the law firm of O’Keke & Associates, P.C. by Ugochukwu Uzoh, Esq., of counsel

The plaintiff is represented by the law firm of Dilimetin & Dilimentin by Laura M. Dilimentin, Esq., of counsel.

Justice Miller

Decision and Order

The defendant Inga Marchand (Marchand), (also know as “Foxy Brown”), moves by order to show cause to vacate a default judgment entered against her on August 15, 2008. The plaintiff Arlene Raymond (Raymond) and the defendant have markedly different versions of how and whether the summons and complaint was served.

The complaint in this action alleges that Marchand assaulted Raymond on July 30, 2007.

Criminal charges were filed against Marchand relating to the incident. Marchand appeared in New York State Supreme Court on May 8, 2008 to enter a plea to a misdemeanor charge in connection with the incident. The alleged service of process took place when Marchand was leaving the 330 Jay Street Supreme Court building.

The defendant Marchand in an affidavit submitted to the Court states “I was never served by a process server, or anyone else, with legal papers. I did not know anyone was there to serve me with a summons and complaint. No one announced themselves to me to be a process server, and I did not direct anyone to knock anything out of anyone’s hands, as plaintiff’s counsel asserts”.

Plaintiff’s attorney in an affirmation states that the process server was able to identify himself to the defendant outside the Supreme Court building and that the defendant gave a directive to her body guard to knock the complaint from the process server’s hands. The original affidavit of service identifies May 9, 2009 as the date of service. The process server in a subsequent affidavit corrects the date of service from May 9, 2008, to May 8, 2008, but does not address the manner of service, or the facts raised by plaintiff’s attorney’s affirmation. The process server’s affidavit is also deficient in that it does not include an affidavit of military service. Raymond attaches a separate affidavit dated October 30, 2008 in an attempt to correct the process server’s omission and states that she conducted an investigation prior to the default motion as to whether Marchand was enlisted in the military service. However, these irregularities are not significant when the person served is the intended person, as defects in the proof of service may be overlooked (Mrwik v. Mrwik, 49 AD2d 750 [2d Dept 1975]).

The defendant has a duty to accept process (Bossuk v. Steinberg, 58 NY2d 916 [1986].) If the defendant resists service, the service may be considered to be validly served pursuant to CPLR §308(1). However, it must be clear that the defendant was made aware of the fact that she was being served. (Haak v. Town of Weatland, 86 AD2d 961 [4th Dept 1982], Coyne v. Besser, 154 AD2d 503 [2d Dept 1989].) Furthermore, the service of process should be “unconditional and clear”. (In Re Bonesteel, 16 AD2d 324 [3d Dept 1962].) Here, the facts surrounding the service as presented to the Court by both the defendant and the plaintiff are so unclear as to raise a question as to the validity of the service.

Marchand argues that no hearing is needed as a defendant may not be served when attending Court and as a New Jersey resident she is immune from service when she appears in the state to attend a Court hearing. While Courts do not look favorably on service of civil process in any part of the courthouse building, it is not unlawful to serve a defendant in a courthouse, unless it is done in a manner that causes a disturbance to Court proceedings. Here where service was allegedly made outside the courthouse, there is no such claim. (Baumgartner v. Baumgartner, 273 AD 411 [1st Dept 1948].)

Additionally, the issue raised that defendant is a New Jersey resident and therefore benefits from immunity from personal service when coming into New York State for a court appearance is also a not dispositive as the rationale for immunity disappears when the plaintiff has a basis for jurisdiction that is independent of in state service. (Chauvin v. Dayon, 14 AD2d 146 [3d Dept 1961]). Here, the plaintiff has an independent basis for jurisdiction under the long-arm provisions of CPLR §302 (a)(2), because the allegation is that Marchand committed a tortious act within the state.

Therefore the Court will hold a traverse hearing on the issue of service of process on Monday, February 23, 2009 at 10:00 a.m. at 360 Adams Street, Brooklyn, N.Y. in Courtroom 456.

The foregoing constitutes the decision and order of the Court.