Yellowbook, Inc. v Kiddie Kampus W., Inc.

Yellowbook, Inc. v Kiddie Kampus W., Inc. 2014 NY Slip Op 50782(U) Decided on April 30, 2014 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.


SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ.
2012-2481 S C

Yellowbook, Inc. Formerly Known as Yellow Book Sales and Distribution Company, Inc. Appellant,

against

Kiddie Kampus West, Inc., Defendant, -and- Louis Pugliese, Respondent.

[*1]

Appeal from an order of the District Court of Suffolk County, First District

(C. Stephen Hackeling, J.), dated September 4, 2012. The order, insofar as appealed from, granted the branch of defendants' motion seeking to dismiss so much of the complaint as was asserted against defendant Louis Pugliese.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the District Court for a new determination, following a traverse hearing, of the branch of defendants' motion seeking to dismiss so much of the complaint as was asserted against defendant Louis Pugliese.

In this action, plaintiff seeks to recover against defendant Kiddie Kampus West, Inc. for breach of contract, and against defendant Louis Pugliese, based on his alleged individual guaranty of the contract executed by the corporate defendant. After a default judgment was vacated against both defendants, defendants sought dismissal of the complaint pursuant to CPLR 3211 (a) (1), (7) and (8), on the ground of improper service. The District Court denied the branch of the motion seeking to dismiss so much of the complaint as was asserted against the corporate defendant, but granted the branch of the motion seeking to dismiss so much of the complaint as was asserted against the individual defendant, Louis Pugliese. Plaintiff appeals from the portion of the order that dismissed so much of the complaint as was asserted against defendant Pugliese.

Plaintiff bore the burden of proving, by a preponderance of the evidence, that personal jurisdiction had been acquired over defendant Pugliese (see e.g. Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [2013]; Aurora Loan Servs., LLC v Gaines, 104 AD3d 885, 886 [2013]; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589 [2009]). The process server's affidavit of service recites, among other things, that service upon defendant Pugliese was accomplished on August 6, 2011 by "nail and mail" service at a private dwelling in Stony Brook, New York, following three prior attempts at personal service. In support of the branch of the motion seeking to dismiss so much of the complaint as was asserted against him, defendant Pugliese submitted an affidavit in which he denied that he had resided at the address served on the date of service, and averred that he had sold his home at the address served and had moved to a different address in Coram, New York, in January 2011. He annexed to his affidavit, among other things, a copy of a lease to a residential apartment in Coram, New York, which ran from December 1, 2010 to November 28, 2013 and named him as a lessee and permitted resident of the apartment.

"Nail and mail" service, made pursuant to CPLR 308 (4), may be used only where personal service under CPLR 308 (1) and (2) cannot be made with due diligence: a standard which is interpreted and applied on a case-by-case basis (see Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759, 760 [2013]). While a process server's affidavit of service gives rise to a presumption of proper service (e.g. Lazarre v Davis, 109 AD3d 968, 969 [2013]; Goralski v Nadzan, 89 AD3d 801, 801-802 [2011]), "a defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, generally rebuts the presumption of proper service established by [the]; process server's affidavit and necessitates an evidentiary hearing' " (Aurora Loan Servs., LLC v Gaines, 104 AD3d at 886, quoting Engel v Boymelgreen, 80 AD3d 653, 654 [2011]; accord Goralski v Nadzan, 89 AD3d at 801; see also Wells Fargo Bank, NA v Chaplin, 65 AD3d 588; Albany Law Sch. v Young, 39 Misc 3d 148[A], 2013 NY Slip Op 50908[U]; [App Term, 9th & 10th Jud Dists 2013]).

Here, while the process server's affidavit of service constituted prima facie evidence of proper service pursuant to CPLR 308 (4), defendant Pugliese's affidavit demonstrated the existence of questions of fact as to the propriety and effectiveness of the service of process. Consequently, we conclude that an evidentiary hearing is required to establish, by a preponderance of the evidence, whether the address served was in fact defendant Pugliese's "actual place of business, dwelling place or usual place of abode" (CPLR 308 [4]) at the time of service, and, in the event that it was, whether the process server acted with "due diligence" before serving defendant Pugliese by "nail and mail" service at that address (see Washington Mut. Bank v Holt, 71 AD3d 670 [2010]).

Accordingly, the order, insofar as appealed from, is reversed and the matter is remitted to the District Court for a new determination, following a traverse hearing, of the branch of defendants' motion seeking to dismiss so much of the complaint as was asserted against defendant Louis Pugliese.

Iannacci, J.P., Marano and Tolbert, JJ., concur.

Decision Date: April 30, 2014