Torres v Soler

[*1] Torres v Soler 2009 NY Slip Op 52330(U) [25 Misc 3d 1228(A)] Decided on November 17, 2009 Supreme Court, Bronx County Suarez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 17, 2009
Supreme Court, Bronx County

Carmen Torres, Plaintiff,

against

David Soler and Mercury Lock & Door, Inc. s/h/a Mercury Lock & Door, Defendants.



20465/2006



Plaintiff:

Don A. Carlos, Jr., Esq.

352 Seventh Avenue, Suite 1202

New York, New York 10001

(212) 631-7442

On the hearing: John L. Lombardi, Esq.,

20 Stuyvesant Oval

New York, NY 10009-2202

(212) 979-5292

Defendants:

Louis M. Spizzirro, Esq.

165 Bronx River Road

Yonkers, New York 10704

(914) 450-2057

Lucindo Suarez, J.

Upon the notice of motion dated June 15, 2009 and the affidavits (2), affirmation and exhibits submitted in support thereof; the July 28, 2009 affirmation in opposition and the exhibits annexed thereto; the August 21, 2009 decision and interim order of the undersigned which set this matter down for a traverse hearing; a traverse hearing having been conducted on November 12, 2009 (Joan Schaefer, Senior Court Reporter); and due deliberation; the court finds:

In this action seeking to recover monetary damages for personal injuries incurred in an automobile accident, defendants move to dismiss the complaint for failure to obtain jurisdiction [*2]over their persons. Pursuant to the affidavits of service filed in this action, service upon defendant David Soler ("Soler") was made on November 28, 2006 at 12:05 p.m. pursuant to CPLR 308(4) by affixing the summons and complaint to the door of Soler's residence after unsuccessful attempts to serve him there on November 22, 2006 at 6:46 a.m., November 23, 2006 at 8:22 p.m. and November 28, 2006 at 12:05 p.m. Service upon defendant Mercury Lock & Door, Inc. ("Mercury") was made pursuant to CPLR 311(a)(1) by service upon general agent John Smith found at Mercury's place of business on November 20, 2006 at 3:00 p.m. The affidavit of service makes no indication that John Smith was intended to be an alias or the name of someone whose true name was not given or was otherwise unknown. Based upon the affidavits submitted by each defendant, the undersigned found sufficient reason to conduct a traverse hearing on the issue of service of process.

The affidavit of defendant David Soler admitted residence at the address where service was alleged to have been completed. Soler, however, denied having received the summons and complaint. He averred that he worked from 7:00 a.m. to 4:00 p.m. and was therefore away from home from 6:30 a.m. to 4:30 p.m., although his wife would have been home at the times of all service attempts. He also averred that he was not on vacation or otherwise unavailable in November 2006. Soler's testimony at the traverse hearing was consistent with his affidavit.

Mercury's president, Howard Levine ("Levine"), averred that Mercury had ceased maintaining offices at the address served approximately eight (8) months prior to the service, nor did Mercury employ anyone fitting the description of the agent served. By November 2006, Mercury's former location had been demolished and the address was a parking lot. Levine's testimony at the traverse hearing was consistent with his affidavit.

Plaintiff's process server did not bring any logbooks, notes or other documentation with him[FN1], had no specific recollection of serving either defendant and could not offer any specifics as to his actions in serving process on either defendant. He was, however, able to confirm his signature on each affidavit of service. He testified that he does not conduct independent research when given an assignment to serve process; he assumes the attorney will have done the research and merely goes to the address given to him by the attorney.

Affidavits of service in appropriate form constitute prima facie evidence that service was properly effectuated. See Chinese Consol. Benevolent Ass'n v. Chan Tsang, 254 AD2d 222, 679 NYS2d 54 (1st Dep't 1998). To raise an issue of fact with respect to service, defendant must set forth specific probative facts; unsubstantiated and conclusory denials of receipt are insufficient. See Chinese Consol., supra ; Rosario v. Beverly Rd. Realty Co., 38 AD3d 875, 833 NYS2d 166 (2d Dep't 2007). Here, defendants each offered details sufficient to warrant a hearing. The affidavits of service were therefore rendered "inconclusive" and it became incumbent upon plaintiff to demonstrate service by a fair preponderance of the evidence. See Blue Spot, Inc. v. Superior Merchandise Electronics Co., 150 AD2d 175, 176-77, 540 NYS2d 787, 789 (1st Dep't 1989).

With respect to defendant Soler, the court takes judicial notice of the facts that November [*3]22, 2006 was the day before Thanksgiving, that November 23, 2006 was Thanksgiving Day and that November 28, 2006 was the Tuesday after Thanksgiving. Holidays are not per se disfavored as far as service of process is concerned. See Slater v. Jackson, 25 Misc. 783, 55 N.Y.S. 581 (App. Term 1899); see also Didsbury v. Van Tassell, 10 N.Y.S. 32 (2d Dep't 1890). However, "[a] court does not properly evaluate someone else's religious or cultural practice, but only takes notes of the patterns of conduct for whatever reason they may be so as to note when a person is likely to be present or absent for service of process." Lee v. Liu, 2007 NY Misc. LEXIS 3397, at *5 n.2 (Civ. Ct. NY County Apr. 6, 2007) (citation omitted).

It has been stated that people are more likely to be at home on holidays, and that service on those days is therefore more liable to calculatingly apprise a defendant of an action against him. See Sartor v. Utica Taxi Ctr., Inc., 260 F. Supp. 2d 670 (S.D.NY 2003) citing Barnes v. City of New York, 70 AD2d 580, 416 NYS2d 52, 53 (2d Dep't 1979), affirmed, 51 NY2d 906, 415 NE2d 979, 980, 434 NYS2d 991 (1980). Service on or near a holiday may not be of significant import where, as here, the defendant has stated that he was not away or unavailable. See Moran v. Harting, 161 Misc 2d 728, 615 NYS2d 225 (Sup. Ct. Westchester County 1994); see also Dunleavy v. Moya, 237 AD2d 176, 655 NYS2d 371 (1st Dep't 1997), appeal dismissed, 90 NY2d 888, 684 NE2d 282, 661 NYS2d 832 (1997) (two attempts during Memorial Day weekend and final attempt on Memorial Day constituted due diligence).

Other cases suggest that service on holidays or during holiday weekends does not generally contribute to an overall scheme of due diligence. See e.g. Scott v. Knoblock, 204 AD2d 299, 611 NYS2d 265 (2d Dep't 1994); Claerbaut v. East Long Island Hospital, 117 AD2d 772, 499 NYS2d 102 (2d Dep't 1986); Faculty Practice Plan of Long Is. Jewish Med. Ctr. v. Guarneri, 13 Misc 3d 302, 822 NYS2d 389 (Civ. Ct., Queens County 2006). These cases, however, have rested on other factors which evidence a broader lack of due diligence.

Here, there is no evidence of the process server's attempts to ascertain Soler's workplace or work habits, see Spath v. Zack, 36 AD3d 410, 829 NYS2d 19 (1st Dep't 2007); Walker v. Manning, 209 AD2d 691, 619 NYS2d 137 (2d Dep't 1994), even though the complaint clearly stated that Soler was Mercury's employee and plaintiff purportedly knew Mercury's address, see JP Morgan Chase Bank, N.A. v. H & B Design, Inc., 10 Misc 3d 1055A, 809 NYS2d 481 (Sup Ct, Nassau County 2005). Under these circumstances, plaintiff failed to exercise due diligence before resorting to the method permitted by CPLR 308(4). See Wood v. Balick, 197 AD2d 438, 603 NYS2d 1 (1st Dep't 1993); see also Faculty Practice Plan, supra .

Regarding service upon Mercury, Levine provided specific facts tending to establish that Mercury could not have been served at the address in the affidavit of service. See Johnson v. Deas, 32 AD3d 253, 819 NYS2d 751 (1st Dep't 2006). The process server was unable to rebut this testimony with facts regarding the sufficient identification of an appropriate agent at the location or the accuracy of the address at which service was attempted. See Countrywide Home Funding Co. v. Henry J.K., 16 Misc 3d 1132A, 847 NYS2d 900 (Sup Ct, Nassau County 2007).

Given the process server's lack of memory, his logbook and other writings would have been particularly useful, as plaintiff was unable to provide any other independent basis for service. See New York City Hous. Auth. Butler Houses v. Williams, 7 Misc 3d 1028A, 801 NYS2d 237 (Civ Ct, Bronx County 2005). The process server's inability to provide "convincing additional details of the facts and circumstances surrounding the alleged service" was insufficient [*4]to rebut defendants' affidavits and testimony. See Forrester v. Luisa, 52 AD3d 324, 324, 859 NYS2d 645, 646 (1st Dep't 2008); Holtzer v. Stepper, 268 AD2d 372, 702 NYS2d 268 (1st Dep't 2000).

If plaintiff does not acquire personal jurisdiction over the defendant, all subsequent proceedings are a nullity. See e.g. Beltre v. Babu, 32 AD3d 722, 821 NYS2d 69, rearg denied, 2006 NY App. Div. LEXIS 14226 (1st Dep't Nov. 16, 2006). Therefore, even in the absence of a motion explicitly seeking such relief, where it has been determined that plaintiff has not acquired jurisdiction over the person of the defendant, dismissal must follow. See Haberman v. Simon, 303 AD2d 181, 755 NYS2d 596 (1st Dep't 2003); see also NYCTL 2004-A Trust v. Faysal, 62 AD3d 409, 877 NYS2d 686 (1st Dep't 2009); Resolution Trust Corp. v. Beck, 243 AD2d 307, 664 NYS2d 522 (1st Dep't 1997).

In the absence of plaintiff's compliance with the statutory requirements for service, a defendant's eventual receipt of the summons and complaint and/or actual notice of the action do not confer jurisdiction. See e.g. Guzman v. New York, 175 AD2d 85, 572 NYS2d 330 (1st Dep't 1991), appeal denied, 78 NY2d 862, 586 NE2d 60, 578 NYS2d 877 (1991). Defendant's knowledge of the action is irrelevant to the question of whether a defendant has been properly served. See Bleier v. Koegler, 28 AD2d 835, 281 NYS2d 440 (1st Dep't 1967).

Accordingly, it is

ORDERED, that defendants' motion to dismiss the complaint on the basis of lack of personal jurisdiction is granted; and it is further

ORDERED, that plaintiff's complaint is dismissed; and it is further

ORDERED, that the clerk of the court is directed to enter judgment in favor of defendants dismissing the complaint.

This constitutes the decision and order of the court.

Dated: November 17, 2009

____________________________

Lucindo Suarez, J.S.C. Footnotes

Footnote 1:Pursuant to 22 NYCRR § 208.29, a process server called to testify at a traverse hearing is required to bring with him all documentation relative to the service in question. See also Borges v. Entra Am., Inc., 7 Misc 3d 1032A, 801 NYS2d 230 (Civ Ct, NY County 2005).