Jamaica Chamber of Commerce, Inc. v Orion Plumbing & Heating Corp.
Annotate this CaseDecided on August 17, 2011
Supreme Court, Queens County
Jamaica Chamber of Commerce, Inc., Plaintiff,
against
Orion Plumbing & Heating Corp., WEI PLUMBING, INC. and WILLIAM HARVEY, Defendants.
1030/2009
Appearances of Counsel:
For the Plaintiff: William V. DeCandido, Esq., 71-50 Austin St., Forest Hills, New York 11375
For the Defendants William Harvey and Orion Plumbing and Heating Corp.: Alexander M. Dudelson, Esq., 26 Court St., Brooklyn, New York 11242
For the Defendant Wei Plumbing, Inc.: Jeffrey J. Raun, Esq., 401 Broadway, New York, NY 11242
Charles J. Markey, J.
The following papers numbered 1 to 11 read on this motion by defendants William Harvey ("Harvey") and Orion Plumbing & Heating Corp. ("Orion"), pursuant to CPLR 5015(a)(4) and 3211(a)(8), to (1) vacate the order of this Court, dated June 29, 2009, (2) dismiss the complaint against them, and (3) impose sanctions; and a cross motion by plaintiff for a determination that service of process on movants was proper, or, in the alternative, to direct a method of service and set forth a discovery schedule.
Papers Numbered
Notice of Motion - Affidavits - Exhibits......................................................1-4
Notice of Cross Motion - Affidavits - Exhibits.............................................5-8
Answering Affidavits - Exhibits...................................................................9-11
Plaintiff commenced this action on January 15, 2009, by filing a summons and complaint. On January 30, 2009, plaintiff filed an amended summons and amended complaint. Plaintiff also moved by order to show cause dated February 3, 2009, for relief [*2]identified as a declaratory judgment and discovery. The motion was granted, without opposition, by order dated June 29, 2009.
The aforesaid order to show cause included a direction for service of the order, the papers upon which it was based, and the amended summons and amended verified complaint. The order provided that service on the corporate defendants, Orion Plumbing & Heating Corp. ("Orion") and Wei Plumbing, Inc. ("Wei"), be made by service on the Secretary of State, and that William Harvey ("Harvey") be served by personal service. Plaintiff had not previously served defendants with process to obtain jurisdiction over them.
The affidavit of plaintiff's process server, dated February 9, 2009, states that the attempt to serve defendant Harvey with the order to show cause was unsuccessful. Defendant Orion was served with the order to show cause and its supporting papers, according to an affidavit of service, by serving the Secretary of State, pursuant to Business Corporation Law section 306. Although the original and amended summonses and complaints were included within the exhibits attached to the order to show cause, process was not otherwise served on Orion.
It is evident from the record, upon the foregoing papers, that defendant Harvey was not served with the summons and complaint or the amended summons and amended complaint within 120 days after the filing thereof in order to obtain jurisdiction over him (CPLR 306-b). Contrary to plaintiff's assertion, even assuming Harvey obtained actual notice of the action by other means, such notice does not suffice to confer jurisdiction over a party (see, Macchia v Russo, 67 NY2d 592, 595 [1986]).
Furthermore, under the circumstances herein, service of the summons and complaint and the amended summons and amended complaint on Orion only by serving the order to show cause with the documents stapled inside was insufficient to acquire jurisdiction over Orion (see, Iglesias v Rodriguez, 143 Misc 2d 498 [Sup Ct Kings County 1989]; 3A Carmody-Wait 2d § 24:17; cf., Palladino v Sargent, 6 AD3d 1082 [4th Dept. 2004].) This is not an instance where the initial summons was attached to a motion, but the amended summons was separately served on defendants. (Cf., Palladino, 6 AD3d at 1083-1084). No such separate service was made in this case. In addition, there was no language in the order to show cause indicating that a summons and complaint were contained within the annexed papers and exhibits, effectively concealing the presence of a summons therein (see, Siegel, NY Prac § 66, at 105 [5th ed]).
Where a summons has not yet been served when a party seeks preliminary injunctive relief by way of order to show cause, the summons should accompany the order [*3]to show cause and be served at the same time; it should not merely be included as part of the papers on which the motion is based (see, Siegal, NY Prac § 300, at 547 [5th ed.]). Moreover, in this instance, the Court specifically inserted in the order to show cause the requirement for service of the amended summons and amended complaint. Such a direction was unnecessary unless the Court intended the service of these documents as a distinct item, since service of the papers upon which the order to show cause was based was also ordered.
On this record, the plaintiff failed to comply with the order to show cause and failed to serve process properly upon the movants. Inasmuch as personal jurisdiction, therefore, was never acquired over defendants Harvey and Orion, the order dated June 29, 2009, that was granted against them upon default, is vacated, and the complaint as asserted against them is dismissed (see, Matter of Feldman v Feldman, 54 AD3d 372 [2nd Dept. 2008]).
The defendants' motion, in all other respects, is denied. The movants have not alleged action by plaintiff or its attorney that rise to the level of frivolous conduct as defined by Uniform Rules for Trial Courts (22 NYCRR) section 130-1.1 (see, S & B Petroleum, Inc. v Gizem Realty Corp., 8 AD3d 550 [2nd Dept. 2004]; Thoubboron v Smith, 8 AD3d 260 [2nd Dept. 2004]; accord, Renga v Renga, 86 AD3d 634 [2nd Dept. 2011]; Sciara v Surgical Assocs. of Western New York, P.C., ____ Misc 3d _____, 2011 WL 249654, 2011 NY Slip Op 21249 [Sup Ct Erie County 2011]; Williams v Omraniri Taub, P.C., 24 Misc 3d 1240(A), 2009 WL 2611360, 2009 NY Slip Op 51832(U), slip op. at 7, n.12 [Sup Ct Kings County 2009]); Phil Xuan Zhang v Goff, 18 Misc 3d 1134(A), 2008 WL 465290, 2008 NY Slip Op 50309(U) [Sup Ct Queens County 2009] [McDonald, J.].
The cross motion by the plaintiff for a determination validating the service is denied. As stated above, service of process on movants was not properly made. To the extent that the plaintiff seeks an extension of time to effect service on defendants Orion and Harvey, the plaintiff has not demonstrated that an extension is warranted, either for good cause or in the interest of justice (CPRL 306-b; see, Colon v Bailey, 26 AD3d 454 [2nd Dept. 2006]; Baione v Central Suffolk Hosp., 14 AD3d 635 [2nd Dept. 2005]).
The plaintiff failed to establish its diligence in attempting service on those defendants, the statute of limitations has not expired, the delay in service is significant, and plaintiff did not promptly request an extension (id.) Furthermore, plaintiff has failed to establish that service is impracticable under the other subdivisions of CPLR 308 in order to justify "expedient service" in a manner directed by the Court under CPLR 308(5) (see, Alvarez v Klein, 55 AD3d 643 [2nd Dept. 2008]; Postawa v David, 31 Misc 3d [*4]1229(A), 2011 WL 1944203, 2011 NY Slip Op 50902(U) [Sup Ct Queens County 2011] [discussion by the undersigned on expedient service and citing federal and state cases]). The request for disclosure is rendered moot with regard to Orion and Harvey by the dismissal of the action against them and also moot concerning defendant Wei by the compliance conference held on April 11, 2011.
The foregoing constitutes the decision, order, and opinion of the Court.
______________________________________
J.S.C.
Dated: August 17, 2011
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