Capital One Bank (USA), N.A. v Ahearn

[*1] Capital One Bank (USA), N.A. v Ahearn 2008 NY Slip Op 52619(U) [22 Misc 3d 1109(A)] Decided on December 12, 2008 Supreme Court, Ulster County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2008
Supreme Court, Ulster County

Capital One Bank (USA), N.A., Plaintiff,

against

Timothy J. Ahearn, Defendant.



08-2383



Rubin & Rothman, LLC

Attorneys For Plaintiff

Mark Braverman, Esq., of counsel

1787 Veterans Highway, Suite 32

P.O. Box 9003

Islandia, New York 11749

Timothy J. Ahearn

Defendant Pro Se

Henry F. Zwack, J.

In this breach of contract action relating to a credit card, defendant moves to [*2]dismiss the complaint on various grounds pursuant to CPLR 3211. Plaintiff opposes the motion.

Defendant argues that service of the complaint was insufficient and did not meet the requirements of the CPLR. The affidavit of service reflects that a process server went to defendant's residence on three successive days, at different times including once in the evening, prior to resorting to "nail and mail" service pursuant to CPLR § 308(4). Defendant argues that the due diligence requirement was not met prior to the server resorting to "nail and mail" service and contends that service should have been attempted on a Saturday, or that his business address should have been attempted to have been ascertained by the server, in addition to other issues raised by defendant. Defendant also moves to dismiss on the grounds of standing, statute of limitations, statute of frauds, and failure to state a claim.

CPLR § 308 does not define "due diligence" and the Court of Appeals has expressly declined to set forth a strict definition (Barnes v City of New York, 51 NY2d 906 [1980]; see Sartor v Utica Taxi Center, Inc., 260 FSupp2d 670, 673-75 [SDNY 2003]). Case law from the Court of Appeals and the Appellate Division, Third Department, do not support a requirement that plaintiff was required to attempt service on a weekend or at a business address (see Barnes, supra; State of New York Higher Educ. Svcs Corp. v Sparozic, 35 AD3d 1069 [3d Dept 2006]; State of New York Higher Educ. Svcs Corp. v Upshur, 252 AD2d 333 [3d Dept 1999]).

The Court has considered the affidavit of service and the multiple attempts and times that were attempted by the process server. Defendant does not contest that the service was attempted at his proper residence and does not dispute that he received the summons and complaint in a timely manner and was able to make the present motion prior to the expiration of his time to answer. Under all the circumstances of this case, the Court finds that the "due diligence" requirement of CPLR 308(4) was met in this case and therefore defendant's motion to dismiss on this basis must be denied.

Additionally, plaintiff has set forth proof that plaintiff issued a credit card to defendant and that defendant stopped making payments in fall 2007. Based upon these facts, the Court finds that defendant's motion must be denied to the extent it set forth defenses of standing, statute of limitations, statute of frauds and failure to state a claim.

Accordingly, it is

ORDERED, that defendant's motion to dismiss is denied; and it is further

ORDERED, that defendant shall serve an answer within ten (10) days after service of notice of entry of this Decision and Order.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorneys for the plaintiff. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not [*3]relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:December, 2008

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice