Friedman v Nitzberg

[*1] Friedman v Nitzberg 2005 NY Slip Op 51619(U) [9 Misc 3d 1117(A)] Decided on October 7, 2005 Civil Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2005
Civil Court, Kings County

Barry A. Friedman, Claimant,

against

Andrew Nitzberg, Defendant.



2900/05

Jack M. Battaglia, J.

On the adjourned return date of August 4, both parties appeared pro se.

A Westchester lawyer who used the facilities of the City Bar in Manhattan to meet with a prospective client is subject to the personal jurisdiction of the Civil Court on claims arising from the attorney / client relationship, but the lawyer cannot be sued in the Small Claims Part.

Claimant Barry A. Friedman purchased a used car over the internet from Harvard Auto Sales, a dealer located in Kingston, New Hampshire. When the vehicle could not be registered in New York, and believing he had been victimized by fraud and, apparently, not sufficiently dissuaded from on-line transactions Mr. Friedman sought legal advice through LawGuru.com. That website announces "FREE Answers to...Legal Questions" through the "world's largest free database of legal questions and answers", and allows the participant to "ask your own free question from [a] network of over 3,500 law firms." Through LawGuru.com, Mr. Friedman communicated with defendant Andrew Nitzberg, a lawyer who resides and maintains an office in New Rochelle.

After an exchange of email communications, Mr. Nitzberg advised Mr. Friedman that he had a "real claim worth pursing through the courts." Mr. Nitzberg suggested that they meet at 42 West 44th Street, Manhattan, the House of the City Bar, and that Mr. Friedman ask for him at the reception desk. They met there on January 3, 2005, and Mr. Friedman retained Mr. Nitzberg to commence an action on his behalf in Kings County against Harvard Auto Sales.

The parties agree that Mr. Friedman gave $645.00 to Mr. Nitzberg, but they disagree about what the money was for, and there is no engagement letter to resolve the dispute. Mr. Friedman says that, based upon signs and brochures located near the "cubicle" where he met with Mr. Nitzberg, he believed that Mr. Nitzberg was part of the Volunteer Lawyers Project, and that the $645.00 was to be used for the expenses of the action against Harvard Auto Sales. Mr. Nitzberg maintains that Mr. Friedman understood that he was paying a $500 fee for Mr. Nitzberg to commence the action, with the balance going to the process server and for court fees.

By April 14, 2005, the date on which this Small Claims Part action was filed, Mr. Nitzberg had not provided Mr. Friedman with any evidence that the action had been commenced. Mr. Friedman gave Mr. Nitzberg's address to the Small Claims clerk as "c/o Legal Referral Service, 42 W. 44th Street, New York, NY" Mr. Friedman seeks damages of $700.00 for "breach of contract".

On the May 26 trial date, Mr. Nitzberg failed to appear, and Mr. Friedman was sent for an [*2]inquest. He was awarded $645.00, the amount he paid to Mr. Nitzberg, and disbursements of $15.00, for a total of $660.00. It appears that Mr. Friedman sent a copy of the Notice of Judgment to the Legal Referral Service, which brought it to Mr. Friedman's attention at the beginning of June. By Order to Show Cause dated June 29, Mr. Nitzberg moved to vacate the judgment. As his excuse for not appearing, he asserted: "The address the notice was sent to is neither a residence nor business address of mine. The notice was never received." As his defense, he stated that he "performed the work and [had] evidence that it was properly executed."

On July 13, the return date for the motion to vacate, Mr. Nitzberg argued for his motion, and orally moved to dismiss the claim for lack of personal jurisdiction. Mr. Friedman appeared with counsel, John Halkias, Esq. The Court granted the motion to vacate, finding both a reasonable excuse for the default and a meritorious defense. (See O'Loughlin v Delisser, 15 AD3d 372, 373 [2d Dept 2005].) The Court reserved decision on the motion to dismiss, pending development of the facts on the record.

At a hearing the same evening, the parties testified to their relationship as summarized above. Mr. Nitzberg also testified that a Summons and Complaint in an action by Mr. Friedman against Harvard Auto Sales had been forwarded to a process server in New Hampshire, and that the papers had been served, but he had not received an affidavit of service from the process server. Because it appeared that, under these circumstances, the parties might resolve the pending claim, the matter was continued until August 4, when this judge would again be presiding in the Small Claims Part.

The parties appeared on that date, but Mr. Friedman was not accompanied by counsel, explaining that he had discharged Mr. Halkias because he could not afford to pay him. Mr. Nitzberg renewed his motion to dismiss on jurisdictional grounds. Mr. Nitzberg also presented an Affidavit of Service, together with a Summons and Complaint, for an action captioned "Barry Friedman, (wife) Friedman, and (son) v Harvard Auto Sales", et al. Although not necessary to the Court's decision on Mr. Nitzberg's motion, the Court notes that the summons in Mr. Friedman's action against Harvard Auto Sales does not comply with the requirements of Civil Court Act § 401(a); the summons with proof of service was not filed within the time period specified in the Act, §409(a); and the out-of-state affidavit of service is not accompanied by the certificate of conformity required by CPLR 2309(c).

In considering Mr. Nitzberg's jurisdictional motion, this Court agrees with Professor Siegel's advice: "Jurisdictional basis on the one hand and the requirement of notice on the other, although both are products of due process and each is essential to jurisdiction, are best investigated separately." (Siegel, NY Prac § 58, at 84 [4th Ed].) Of course, as a resident of the State of New York, Mr. Nitzberg can be made subject to the jurisdiction of the Civil Court without due process concerns as to jurisdictional basis.

With respect to statutory jurisdictional basis, by reason of Civil Court Act §404(a)(1), the Civil Court "may exercise personal jurisdiction over any non-resident of the City of New York...if he...transacts any business within the City of New York or contracts anywhere to supply goods or services in the City of New York", but only "as to a cause of action arising from any of [such] acts." Civil Court Act §404(a)(1) is based upon CPLR 302(a)(1), with the City of New York, rather than the State, constituting the material geographic area.

There can be no question that Mr. Nitzberg's meeting with Mr. Friedman in the City, and agreeing to represent him in commencing an action in the courts of Kings County, subject him to the jurisdiction of the Civil Court in an action arising from the attorney/client relationship. (See Liberatore v Calvino, 293 AD2d 217, 220-21 [1st Dept 2002].) "The totality of the [*3]circumstances of [Mr. Nitzberg's] representation to [Mr. Friedman]...that he was sufficiently skilled and knowledgeable to pursue [his] ...claim" in the courts of Kings County "makes it unquestionably fair and just that he be subject to New York [City] jurisdiction for the...claim resulting from his [conduct] in providing such services." (See id., at 221.)

The real question here is whether Mr. Friedman may maintain his action in the Small Claims Part, and, because of the manner of service provided for Small Claims Part actions, that determination requires consideration of the due process requirements for notice. Again, notice of Mr. Friedman's claim was purportedly provided to Mr. Nitzberg "c/o Legal Referral Service" at the House of the City Bar on West 44th Street, Manhattan.

The Civil Court Act "defines" a small claim as "any cause of action for money only not in excess of five thousand dollars exclusive of interest and costs, provided that the defendant either resides, or has an office for the transaction of business or a regular employment, within the city of New York." (CCA §1801.) On its face, this "definition" limits the Small Claims Part, with its relaxed procedures and evidentiary rules (see CCA §1804), among other differences from the other parts of the Civil Court, to the actions "defined". It should be apparent, however, that a claim cannot fairly be considered "small" or "large" by reference to the place of residence, business, or employment of the defendant.

The significance of these additional considerations to the purview of the Small Claims Part lies in the provisions relating to the giving of notice of the claim to the defendant. The statute provides for "the sending of notice of such claim by ordinary first class mail and certified mail with return receipt requested to the party complained against at his residence, if he resides within the city of New York, and his residence is known to the claimant, or at his office or place of regular employment within the city of New York if he does not reside therein or his residence within the city of New York is not known to the claimant." (CCA §1803[a].) Moreover, "[i]f, after the expiration of twenty-one days, such ordinary first class mailing has not been returned as undeliverable, the party complained against shall be presumed to have received notice of such claim." (Id.)

It is undisputed that Mr. Nitzberg does not reside in the City and does not have "a regular employment" in the City, and that, therefore, Mr. Friedman's claim qualifies as a "small claim" only if Mr. Nitzberg "has an office for the transaction of business" in the City. (See CCA §1801.) And, because he has no residence or "place of employment" in the City, notice was required to be given to him "at his office" in the City. (See CCA §1803[a].) According to the clerk's office, the notice mailed to Mr. Nitzberg at West 44th Street was refused, and, since it was not "returned as undeliverable", it was deemed served pursuant to the statutory presumption. (The Court offers no opinion as to whether the statutory presumption was appropriately applied in these circumstances.)

It is apparent that service of the notice of claim in the Small Claims Part differs from service of the summons to commence a plenary action generally. Except for the infrequently used service with acknowledgment of receipt (see CPLR 312-a), service by mail is only supplementary to delivery to a suitable person or affixation at a residence or place of business, and in the latter case only after diligent attempt at personal delivery. (See CPLR 308[2], [4].) The general service provisions speak of the "actual place of business" of the person to be served (see id.), rather than "his office" (see CCA §1803[a]). The term "actual place of business" includes "any location that the defendant, through regular solicitation of business or advertisement, has held out as its place of business." (CPLR 308[6].)

The only published decision that applies small claims "definitional" and service [*4]provisions similar to Civil Court Act §1801 and §1803 is Katims v DaimlerChrysler Corp. (2005 NY Slip Op 25312 [Dist Ct, Suffolk County]), which applied the provisions found at Uniform District Court Act §§ 1801 and 1803. In Katims, the court held that sending the notice of claim to Huntington Jeep Chrysler, Inc, a Chrysler "dealer" or "franchisor" (id., at *2) and DaimlerChrysler's "informally designated...agent for the service of process" (id., at *5), was sufficient to establish small claims jurisdiction over DaimlerChrysler (see id., at *4-*5).

There is otherwise scant authority applying the service provisions of Civil Court Act §1803 or similar provisions. (See Peter v Massapequa Water District, 192 Misc 2d 738 [Dist Ct, Nassau County 2002], rev'd on other grounds 1 Misc 3d 130[A], 2003 NY Slip Op 51589[U][App Term, 2d Dept]; Hampton v Annal Management Co., Ltd., 164 Misc 2d 28 [Civ Ct, Bronx County 1994], rev'd on other grounds 168 Misc 2d 138 [App Term, 1st Dept 1996]; Cohen v Banks, 160 Misc 2d 159 [Just Ct, Rockland County 1994].) None of these decisions address the question that involves us here.

"[A]n elementary and fundamental requirement of due process...is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 [1950].) The United States Supreme Court has "repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice." (Tulsa Professional Collection Services, Inc. v Pope,

485 US 478, 490 [1988].) There is only "slight risk that notice sent by mail might not be received." (Akey v Clinton County, NY, 375 F3d 231, 235 [2d Cir 2004].) Specifically, the constitutionality of the service-by-mail provision of Uniform District Court Act §1803 has been upheld by at least one court. (See Peter v Massapequa Water District, 192 Misc 2d at 740-41; see also Mathews v Seeburger, 805 SW2d 731, 733 [Ct App Mo 1991].)

The appropriateness of the method of service, however, assumes the appropriateness of the place of service. Delivery to a suitable person or affixation, followed by mail, is "reasonably calculated to provide actual notice" (Tulsa Professional Collection Services, Inc. v Pope,

485 US at 490) because they are made, respectively, "at the actual place of business, dwelling place or usual place of abode of the person to be served" or "his or her last known residence." (See CPLR 308 [2], [4].) And so is mailing made to a person's "office for transaction of business." (See CCA §1801; see also CCA§1803.)

In determining whether any particular location is a person's "office for the transaction of business", such that a mailing to that location will be "reasonably calculated to provide actual notice", we can take direction from the caselaw elaborating the term "actual place of business". One can certainly describe differences between an "office" and "place of business". At an "office", for example, one would usually expect to find clerical personnel available to accept and process mail; that might not be so, depending upon the nature of a business, at a "place of business". For present purposes, it would seem that a location that could not be said to be a person's "place of business" could not be said to be that person's "office for the transaction of business".

"New York courts define 'actual place of business' as (1) a place where the defendant regularly transacts business,...or (2) a business location owned or operated by defendant, 'giving rise to a clear identification of the work performed by her within that place of business'." (Lorensen v Digman, 1998 US Dist LEXIS 861, *4-*5 [NDNY 1998][quoting Columbus Realty Inv. Corp. v Weng-Heng Tsiang, 226 AD2d 259, 259 (1st Dept 1996)]; see also Katz v Emmett,

226 AD2d 588, 589 [2d Dept 1996].) In our case, although one might suspect that Mr. Nitzberg would, by design or not, benefit from an impression of "identification" between his services and [*5]the House of the City Bar, particularly when the receptionist has been instructed to direct a prospective client to him, that impression alone would not be sufficient to constitute the House his "actual place of business".

Nor does it appear that Mr. Nitzberg transacts business at the House of the City Bar with the regularity necessary to constitute it as his "actual place of business". He testified that he is a member of the City Bar, uses its library, and has used its facilities to meet with clients other than Mr. Friedman, but there is insufficient evidence of such regularity of use as to allow a conclusion that mail addressed to him at the address of the City Bar would be reasonably calculated to reach him.

There is evidence in one of the emails that Mr. Friedman perceived Mr. Nitzberg to be "part of " the City Bar, but the Court cannot say that there is sufficient evidence that Mr. Nitzberg mislead Mr. Friedman so as to be estopped from maintaining that a mailing to the West 44th Street address was ineffective as service upon him. Indeed, by including "c/o Legal Referral Service" as part of Mr. Nitzberg's address in filing the claim against him, Mr. Friedman recognized that some agency other than the Postal Service would be required to deliver a communication addressed to him at West 44th Street.

Although the Court is not favorably impressed with Mr. Nitzberg's conduct in his relationship with Mr. Friedman, particularly his determination to avoid accountability to Mr. Friedman on grounds other than the merits, the Court must conclude that there is no personal jurisdiction over him in this Small Claims Part action. The authority given the Court to transfer a small claim to another part of the court (see CCA§1805[b]) is unavailing under these circumstances.

Judgement is awarded to Mr. Nitzberg, dismissing the claim, without prejudice to an action by Mr. Friedman against him in an appropriate part of the Civil Court with service as required by CPLR 308, or in any other court with appropriate jurisdiction. In addition, if Mr. Friedman believes that Mr. Nitzberg has not conducted himself in a manner consistent with their professional relationship, he might complain to the Grievance Committee, Ninth Judicial District at 399 Knollwood Road, Suite 200, White Plains, NY 10603 (914-949-4540).

October 7, 2005

Judge, Civil Court