Kasan v Perlin
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Kasan v Perlin 2009 NY Slip Op 33409(U) April 6, 2009 Supreme Court, Nassau County Docket Number: 15880/08 Judge: William R. LaMarca Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] . 0 I SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 15 Present: HON. WILLIAM R. LaMARCA Justice Motion Sequence #2 Submitted January 13, 2009 GARYKASAN, Plaintiff, INDEX N0:15880/08 - against MARILYN S. PERLIN and ELISE KASAN, Defendants. The following papers were read on this motion: Notice of Motion .................. ;................................................... ~ ........ 1 Affirmation in Opposition ................................................................2 Affidavit in Opposition ........................... .-.........................................3 Reply Affirmation ...................................................·............ ;........ :..... 4 Requested Relief Counsel for defendants, MARILYN S. PERLIN and ELISE KASAN, moves for an order, pursuant to CPLR §3211 (a)(8), dismissing the action for lack of personal jurisdiction. Counsel for plaintiff, GARY KASAN, opposes the motion, which is determined as follows: Background In this action, plaintiff seeks to impose a constructive trust over certain real estate located at 60 Christopher Street, Woodbury, New York, owned by defendant, MARILYN S. PERLIN, allegedly in trust for her daughter, defendant ELISE KASAN, and her now -1- [* 2] · was that a prior motion .· The court notes . plaintiff GARY KA SAN. . ·ff aid property, ed son-m-\aw, filed by pla1nt1 on s estran9 otice of pendency I . t had not been made upon sed by defendants to vacate a n interpo . f the comp a1n . the service o h d und that, inter a Ita, tice of pendency a on the gro 'd and therefore, the no e in Flon a , .d b. ct property was presently under defendant PERLIN at her res1 enc dants argued that the su ie expired. In that motion, defen h t the closing on the sale of the 00 000.00, and t a · the sumo f $1 ,6 ' . f the notice of pend ency was contract for sale, m 2008 but the existence o heduled for Octo b er property was sc . B Short Form Order, dated · of the transaction. Y a cloud on title preventing the closing . . a factual dispute concerning service of 09 the Court noted that there was January 30 , 20 , PERLIN at her gated community in Florida in that she challenged process on MARILYN S · .d ·t f service However in an effort to be practical, the Court the contents of the aff 1 av1 o · ' declined to direct a traverse hearing because the cost of producing witnesses from Florida, and the fact that there was no time bar precluding the filing of another notice of pendency and service within thirty (30) days, would have made any such relief purely illusory. Instead, the Court fashioned a procedure for defendants to obtain the very relief they were seeking, vacatur of the notice of pendency, by posting a bond in the sum of $200,000.00 which, based upon a fair reading of the complaint, was the maximum amount which the plaintiff was entitled to recover if successful on the trial of the action. It was the Court's preference to facilitate the sale of the Florida residence in these uncertain times by removal of the notice of pend ency, and to address the issues raised by the plaintiff in the constructive trust action, which, in essence, provided relief to both parties. Notwithstanding same, the Court is now faced with a motion by defendants, in which both counsel completely ignore the practicalities of the prior order of the Court, and seek -2- [* 3] to argue on purely technical and procedural grounds. In support of the motion, counsel for defendants again argues that Ms. PERLIN was never seNed with the summons and complaint, which was filed on August 25, 2008, and that a failure to serve the summons within thirty (30) days of filing mandates its cancellation. Affidavits from Ms. PERLIN and Carolyn Lombardo, the property manager at the gated community where Ms. PERLIN resides, claim that there are no records of the process seNer entering the community on the dates in question. Ms. PERLIN states that she was at home at the time of alleged attempts to seNe her. In opposition to the motion, counsel for plaintiff and the process server assert that several unsuccessful attempts to personally seNe Ms. PERLIN were made at her residence, and that the summons, verified complaint and notice of Pendency were affixed to Ms. PERLIN's door, on September 19, 2008, with follow up mailing on said date. The affidavit of the process seNer, Pennie Cain, annexed to the instant motion, states unequivocally that she attempted to personally seNe defendant PERLIN on three (3) days, that she rang the bell and knocked on the door but no one answered, that she was unable to find a person of suitable age and discretion, and that the documents were posted on the door. Ms. Cain states that she has been to the community before, that she is known to the attendant at the gate, and that she is customarily permitted entry to the gated community without signing in. It is counsel's position that the Affidavit of SeNice makes a prima facie showing of proper seNice and that this motion is untimely. Further, counsel points out that neither defendant has interposed an answer and that a notice of default has been sent to defendants' counsel. ,.., -.)- [* 4] After a careful reading of the submission herein, given counsels' unwillingness to proceed on the merits without challenges to jurisdiction, it appears to the Court that an evidentiary hearing is required to determine whether effective service of the summons and complaint has been obtained upon MARILYN S. PERLIN. It is therefore ORDERED, that the prior order of the Court, dated January 30, 2009, is stayed pending determination of the jurisdictional issues raised herein; and it is further ORDERED, that this matter is specifically referred to the Calendar Control Part for a traverse hearing and shall appear on the calendar of CCP on July 28, 2009 at 9:30 A.M., subject to the approval of the Justice there presiding; and it is further ORDERED, that defendants, MARILYN S. PERLIN and ELISE KASAN, shall file a Note of Issue within ninety (90) days from the date of this order and shall serve plaintiff's counsel a copy of same by certified mail, return receipt requested; and it is further ORDERED, that the failure to file a Note of Issue as directed may be deemed an abandonment of the claims giving rise to the traverse hearing. All further requested relief not specifically granted is denied. This constitutes the decision and order of the Court. \ Dated: April 6, 2009 ·\ ~ WILLIAM R. LaMARCA, J.S.C. ENTERED APR o9 2009 NASSAU CUIJN n COUNTY CtERK'S Of f~Ct -4-
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