Acqua Wellington Asset Mgt. v Anzaroot

[*1] Acqua Wellington Asset Mgt. v Anzaroot 2009 NY Slip Op 50417(U) [22 Misc 3d 1133(A)] Decided on March 11, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2009
Supreme Court, Kings County

Acqua Wellington Asset Management, Plaintiffs,

against

Isaac Anzaroot, AJA Global Properties, LLC, 103-105 Chestnut Street Properties, LLC, 159-163 Conklin Realty, LLC, and Thorpe Towers, LLC, Defendant.



3658/09



Counsel:

Plantiff-

Novak, Juhase, and Stern, LLP

516-569-3030

Francois A. Rivera, J.

Plaintiffs have moved by order to show cause for a restraining order against the defendants. The court signed the instant order to show cause on February 17, 2009 and directed personal service to be effectuated upon the defendants on or before February 18, 2009. On February 20, 2009, the return date of the order to show cause, plaintiffs counsel appeared for oral argument and submitted an attorney's affirmation alleging service of the instant order to show cause. No one appeared on behalf of the defendants.

The affirmation of service submitted to the court on February 20, 2009 did not reflect a filing with the Kings County Clerk's officer. The affirmation averred service on all defendants by leaving the order to show cause with a person of suitable age and discretion, namely the doorman and concierge of defendants last know address, and also by sending the papers by overnight mail courier service on February 17, 2009. The affirmation of service also alleged service to all defendants through the use of electronic mail submitted on February 18, 2009.

LAW AND APPLICATION

CPLR§ 308 states, provides in pertinent part: Personal service upon a natural person shall be made by any of the following methods: 1. by delivering the summons within the state to the person to be served; or 2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing;

The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with (In the Matter of El Greco Society of Visual Arts, Inc. v Diamantidis, 47 AD3d 929 [2nd Dept 2008]). Moreover, where the court orders service by a particular date, all components of service must be accomplished by that date (In the Matter of El Greco Society of Visual Arts, Inc. v Diamantidis, supra.; Matter of Sorli v Coveney, 51 NY2d 713).

Service according to CPLR §308 (2) is deemed complete 10 days after filing of the affidavit of service. The order to show required personal service to be complete on or before February 18. By using the alternative service method set forth in CPLR §308(2), the earliest possible time that service could have be completed was ten days after February 17, 2009, assuming that the affirmation of service was filed with the Kings County clerks' office on February 17, 2009, the earliest opportunity possible. Here, there is no proof of filing of the affirmation of service on either February 17 or thereafter. Inasmuch as personal service was not completed on the defendants by February 18, 2009, the court never obtained personal jurisdiction over defendants.

The instant order to show cause is, therefore, denied without prejudice.

__________________________

J.S.C.