Brito v Persaud
Annotate this CaseDecided on June 15, 2012
Supreme Court, Queens County
Zulema Brito, Plaintiff,
Ronald Persaud, et al., Defendant.
28330/2007
For the Plaintiff: Scott Baron & Associates, by Edward C. Lehman, Esq., 159-49 Cross Bay Blvd., Howard Beach, New York 11414
For Defendants Ronald Persaud and Padmini Persaud: Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, by Jane M. O'Callaghan, Esq., 333 Earle Ovington Blvd., Uniondale, New York 11553-3625
Charles J. Markey, J.
The plaintiff was allegedly injured in 2005 in a trip-and-fall in front of a building owned by the defendants. A timely motion for a default judgment had been denied without prejudice since the underlying affirmation to that motion did not pertain to that case. A subsequent motion resulted in the Court holding an inquest on damages. Following the inquest, by decision dated July 31, 2009, the Court awarded the plaintiff a judgment of $500,000.00, consisting of $350,000.00, for her past pain and suffering, and $150,000.00 for future pain and suffering and medical expenses.
Following the defendants' timely order to show cause to vacate the default judgment, the Court held a traverse hearing.
The Court has considered all the evidence and reviewed all the original motion papers, the testimony, and the exhibits at the hearing. The defendants owned a mixed use building in Queens County, New York, containing both residential and commercial tenants. That building was neither the residence or place of business of the defendants.
According to Plaintiff's Exhibit 1, the process server's affidavit, at the hearing, held on December 15, 2011, the papers were allegedly served on defendant "Padimini" [sic] Persaud, referring to defendant Padmini Persaud, for her and on behalf of her [*2]husband, co-defendant Ronald Persaud, at the property they owned, at 88-19 Liberty Avenue, in Ozone Park, Queens County, New York.The process server indicated that, on November 19, 2007, he had served an individual in one of the residential apartments of the property, with the name of Persaud.
The evidence established that at the time of the claimed service, the defendants actually lived in Baldwin, Long Island, and maintained that address for a ten year period until 2010, when they moved to Hollis, in Queens County.
According to the credible evidence, the defendants did not live or have a place of business at the property in 2007. Ownership of a property does not make it a "place of business" within the meaning of service of process statutes. See, Olivaria v Lin & Son Realty Corp., 84 AD3d 423 [1st Dept. 2011]; Sottile v Islandia Home for Adults, 278 AD2d 482 [2nd Dept. 2000]; Balendran v North Shore Med. Group, P.C., 251 AD2d 522 [2nd Dept. 1998].
Moreover, the defendants' residence in Baldwin could have been learned by due diligence, and neither of the defendants tried to avoid service. The fact that the process server may have served a tenant at the property named "Persaud" did not permit plaintiff to conclude that he served the defendants who shared the same surname or last name. The Court notes that in Queens County the name "Persaud" is as common as "Smith" or "Jones." See, Bumpus v New York City Tr. Auth., 66 AD3d 26, 28 [2nd Dept. 2009] ["The plaintiff's counsel claimed that Lorna Smith's name was so common that service of process upon her was impossible absent additional information."].
The traverse is sustained. The Court vacates the default judgment.
The foregoing constitutes the decision, order, and opinion of the Court.
______________________________Hon. Charles J. Markey
Justice, Supreme Court, Queens County
Dated: Long Island City, New York
June 15, 2012
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