Ghee v Washington Mut. Bank F.A.

[*1] Ghee v Washington Mut. Bank F.A. 2006 NY Slip Op 50398(U) [11 Misc 3d 1066(A)] Decided on March 20, 2006 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 20, 2006
Supreme Court, Kings County

Juanita Ghee, Plaintiff,

against

Washington Mutual Bank F.A., WASHINGTON MUTUAL INC., and NYDIA RODRIGUEZ, Defendants.



2366/05

Arthur M. Schack, J.

In this action for alleged personal injuries sustained by plaintiff as a result of sexual harassment, employment discrimination, and assault, defendant Rodriguez moves for an order pursuant to CPLR Rule 3211 (a) (8) dismissing the complaint against her for failure of the plaintiff to have jurisdiction over her person. According to the complaint [exhibit A of motion], plaintiff started working at a Manhattan branch of Washington [*2]Mutual Bank in April 2004. Defendant Rodriguez was plaintiff's supervisor. The summons and complaint, both dated January 24, 2005, were filed with the Kings County Clerk on January 26, 2005, and affidavits of service were filed on February 16 and 24, 2005.

In her March 10, 2005-affidavit, Sylvia Patterson, mother of defendant Rodriguez [exhibit C of motion], states that she resides at 301 Van Siclen Avenue, Brooklyn, New York 11207, and that on January 24, 2005 (same dates as the summons and complaint) her daughter permanently moved to Florida. Further, on February 4, 2005, a process server visited her home and left her with papers for her daughter, despite her daughter moving to Florida eleven days earlier.

Defendant Rodriguez, in a document labeled as an "affidavit," dated February 22, 2005 [exhibit B of motion] claims that on January 24, 2005 she "physically moved to Florida permanently, where I now live," and that she was informed by her mother that "on February 4, 2005, a process server delivered the summons and complaint in this lawsuit to her house." The so-called "affidavit" is sworn to in the State of New York, County of New York. However, after an illegible signature on the line for the signature of the notary public, there is no statement of the notary's authority. Executive Law § 137 requires that:

In exercising his powers pursuant to this article, a notary public, in addition

to the venue of his act and his signature, shall print, typewrite, or stamp

beneath his signature in black ink, his name, the words "Notary Public

State of New York," the name of the county in which he originally qualified,

and the date upon which his commission expires and, in addition, wherever

required, a notary public shall also include the name of any county in which

his certificate of official character is filed, using the words "Certificate

filed . . . County."

Attached as an exhibit to plaintiff's affirmation in opposition is a New York State Department of Motor Vehicles (DMV) March 31, 2005-record showing that defendant Rodriguez still resides at 301 Van Siclen Avenue, 66 days after she claimed to have moved to Florida.

Another exhibit attached to plaintiff's affirmation in opposition is an April 12, 2005-affidavit of service by Carlos Aguirre, a Miami-Dade County process server. Mr. Aguirre states that he served the summons and complaint in the instant action by affixing one copy to the door of defendant Rodriguez's apartment at 1250 Northeast 125th Street, North Miami, FL 33161 at 7:21 A.M. on April 9, 2005, a Saturday. He then completed service by mailing a copy of the summons and complaint to Ms. Rodriguez via first-class United State mail in an envelope marked "PERSONAL & CONFIDENTIAL," without indicating on the envelope that it was a legal action. Mr. Aguirre states that this was the [*3]third attempt at personal service, with earlier attempts on April 7, 2005, a Thursday, at 1:10 P.M., and April 8, 2005, a Friday, at 9:05 P.M.

Defendant Rodriguez's motion to dismiss for failure to have jurisdiction over her person must be denied for a variety of reasons. Her alleged "affidavit" challenging service in New York is inadmissible and a nullity. Next, her failure to notify DMV of her move to Florida within ten days of her move precludes any challenge to service at her Brooklyn address. Last, even if her affidavit is valid and she can challenge service at 301 Van Siclen Avenue, Brooklyn, the Florida service met the "due diligence" requirements of CPLR § 308 (4).

Discussion

CPLR § 2308 (a) states that "an oath or affirmation may be administered by any

person authorized to take acknowledgments of deeds by the real property law." Notaries Public fall under this statute. Defendant Rodriguez's affidavit fails to have the required information, pursuant to Executive Law § 137, as to the authority of the alleged notary public who signed the jurat. Therefore, the affidavit is not admissible.

Further, Vehicle and Traffic Law (VTL) § 505 (5) states that "[i]t shall be the duty of every licensee to notify the commissioner in writing of any change of residence of such licensee within ten days after such change occurs and to make a notation of such change of residence on such license in the place provided by the commissioner." It is clear that 66 days after Ms. Rodriguez's purported move to Florida she had failed to comply with VTL § 505 (5). Defendant Rodriguez offers no excuse for her failure to comply with VTL § 505 (5). In Burke v Zorba Diner, Inc., 213 AD2d 577 (2d Dept 1995), the Court instructed, at 578-579, that:

A party who fails to comply with this provision [VTL § 505 (5)] is estopped

from challenging the propriety of service which is made to the former address

(see, Sherrill v Pettiford, 172 AD 512 [2d Dept 1991]; Lavery v Lopez, 131

AD2d 820 [2d Dept 1987]). Here, the record indicates that the appellant failed

to change his address as required by the Vehicle and Traffic Law and he is,

therefore, estopped from contesting the validity of service to his former

address (see, Melton v Brotman Foot Care Group, 198 AD2d 481 [2d

Dept 1993]).

In defendant's memorandum of law in further support of her motion to dismiss, defendant argues that Burke applies only to motor vehicle accidents. Nothing could be further than the truth. Burke was a personal injury action in which defendant allegedly threw a chair which struck plaintiff. The Appellate Division, Second Department, has consistently estopped defendants who have failed to comply with VTL § 505 (5) from [*4]challenging service made at their alleged former address. See Anello v Barry, 149 AD2d 640 (1989); McCleaver v VanFossen, 276 AD2d 603 (2000); O'Garro v Brown, 288 AD2d 279 (2001); Choudhry v Edwards, 300 AD2d 529 (2002); Kandov v Gondal, 11 AD3d 516 (2004); Labozzetta v Fabbro, 22 AD3d 644 (2005).

With respect to the service of process on defendant Rodriguez in Florida, CPLR § 313 provides that a person subject to "long-arm" jurisdiction under CPLR § 302 may be served outside the State of New York "in the same manner as service is made within the state." CPLR § 302 (a) (2) permits a cause of action against a non-domiciliary who "commits a tortious act within the state." State v Davies, 24 AD2d 240 (3d Dept 1965), affd 18 NY2d 950 (1966); Dobkin v Chapman, 21 NY2d 490 (1968). The Dobkin Court, in analyzing the use of substituted service, pursuant to CPLR § 308 (4), upon a non-domiciliary for tortious acts committed by the non-domiciliary while a New York resident, instructed at 501-502, that:

[n]otice and an opportunity to be heard are, of course, high among the

traditional elements of fair procedure included in the concept of due

process . . . CPLR 308, for example, provides for a hierarchy of alternative

means of service, in which the primary place is given to the delivery of

process to the defendant in person. Due process is not, however, a mechanical

formula or a rigid set of rules. Increasingly in modern jurisprudence, the term

has come to represent a realistic and reasonable evaluation of the respective

interests of plaintiffs, defendants and the state under the circumstances of the

particular case.

In determining if the "due diligence" requirements of CPLR § 308 (4) are met, the Court of Appeals, in Barnes v City of New York, 51 NY2d 906 (1980), observed, at 907, that "in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed." Barnes affirmed the Second Department's decision, 70 AD2d 580 (1979), that held, "[a]s Special Term observed, the due diligence requirement refers to the quality of the efforts made to effect personal service, and certainly not to their quantity or frequency.'" In Matos v Knibbs, 186 AD2d 725 (2d Dept 1992), the process server made three attempts to serve a defendant on various days and various times. Similar to the instant case, one of these attempts was made during normal working hours, another on a Friday evening, and the last on a Saturday, albeit in the afternoon, unlike the morning as in the instant case. The Court found this sufficient to meet the "due diligence" requirement. In Johnson v Waters, 291 AD2d 481, (2d Dept 2002), a process server made three attempts to serve a defendant at his residence, one during normal working hours, then on a Wednesday evening, and then on a Saturday morning. The Court held, that: [*5]

The three attempts to make service of the summons and complaint upon

the defendant at his residence at different times and on different days,

including a Saturday, were sufficient to constitute due diligence (see,

Matos v Knibbs, 186 AD2d 725). Since there was no indication that

he worked on Saturdays, there was no showing of any other reasonable

means whereby the chances of successful personal service could have been

significantly increased (see, Matos v Knibbs, supra). Accordingly, the

process server properly resorted to service of process pursuant to CPLR

308 (4). Thus, the substituted service on defendant Rodriguez, in Florida, on April 9, 2005,

complied with the statutory requirements of CPLR § 308 (4) for "due diligence." The plaintiff properly served defendant Rodriguez within 120 days of the filing of the summons and complaint, pursuant to CPLR § 306 (b). Therefore, in the instant action, the Court has personal jurisdiction of defendant Rodriguez.

Conclusion

Accordingly, it is

ORDERED, that the motion of defendant Rodriguez for an order, pursuant to CPLR Rule 3211 (a) (8), dismissing the complaint against her for failure of the plaintiff to have jurisdiction over her person, is denied.

This constitutes the Decision and Order of the Court.

E N T E R

___________________________ HON. ARTHUR M. SCHACK

J. S. C.