U.S. Bank N.A. v Agbodjan

[*1] U.S. Bank N.A. v Agbodjan 2010 NY Slip Op 50836(U) [27 Misc 3d 1221(A)] Decided on May 12, 2010 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 4, 2010; it will not be published in the printed Official Reports.

Decided on May 12, 2010
Supreme Court, Kings County

U.S. Bank National Association, AS TRUSTEE ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES, SERIES 2007-3, Plaintiff,

against

THEOPHANE K. AGBODJAN, CITIBANK, N.A., ET AL, Defendants.



14801/2008



Atty for Plaintiff

Owen M. Robinson, Esq

Rosicki, Rosicki & Associates, PC

51 East Bethpage Road

Plainview, NY 11803

(516) 741-2585

Atty for Defendant

John DeMaio, Esq.

75 Maiden Lane, Suite 203

New York, NY 10038

(212) 405-2104

Francois A. Rivera, J.

By notice of motion filed on December 2, 2009, under motion sequence number one, Theophane K. Agbodjan (Agbodjan) moves for an order dismissing the complaint pursuant to CPLR § 3211(a)(8) on the grounds of lack of personal jurisdiction. Plaintiff opposes the motion.

BACKGROUND

On May 20, 2008, plaintiff commenced this foreclosure action by filing a summons, complaint and a notice of pendency with the Kings County Clerk's office. On June 3, 2008, plaintiff filed an affidavit of service indicating that service of the summons and complaint had been made pursuant to CPLR § 308 (4) to an address in Kings County.

Agbodjan has not answered the complaint and has made the instant motion to dismiss the complaint on the grounds of lack of personal jurisdiction. [*2]

MOTION PAPERS

Agbodjan's motion papers contain his counsel's affirmation, his affidavit and a copy of the summons and complaint. Agbodjan avers that his home address is 860 Belmont Avenue, Apartment 2, Brooklyn, New York and that he was not personally served the pleadings, nor did he receive them by mail or find them affixed to the door of his home.

Plaintiff's oppose the motion with the affirmation of its counsel and three annexed exhibits labeled A through C. Exhibit A is the summons and complaint. Exhibit B is the affidavit of Alan Feldman, plaintiff's process server. His affidavit states that he attempted to personally serve and finally affixed and mailed the pleadings to 860 Belmont Avenue 2 in Brooklyn, New York. It is unclear what is meant by the description "Avenue 2" in the affidavit. The opposition papers did not include a copy of the envelope in which the letter was mailed.Exhibit C is the affidavit of Lauren Vasil, pertaining to her unsuccessful attempt to locate Agbodjan at his place of business.

An affidavit of a licensed process server is prima facie evidence of service in accordance with the allegations of fact contained therein (City of New York v. Miller, - NYS2d , 2010 WL 1499459 (2nd Dept. 2010) citing Scarano v. Scarano, 63 AD3d 716 [2nd Dept. 2009]). Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits (City of New York v. Miller, - NYS2d , 2010 WL 1499459 (2nd Dept. 2010) citing Scarano v. Scarano, 63 AD3d 716 [2nd Dept. 2009]).

In this instance Agbodjan specifically stated that his home address is 860 Belmont Avenue, Apartment 2, Brooklyn, New York and that he was not personally served the pleadings, nor did he receive a mailing or find them affixed to his residence. The process server's affidavit alleges that all attempt at service, the affixing and the mailing of the pleadings were done at "860 Belmont Avenue 2, Brooklyn, New York". There is no clear explanation of what the process server meant by "Avenue 2". Of course, if the mailing to Agbodjan was written in this fashion, it would be incorrectly addressed.

On February 19, 2010, after oral argument on the motion, the court ordered a traverse hearing to resolve the questions of fact raised by the ambiguity contained in the motion papers.

TRAVERSE HEARING

On May 11, 2010, the traverse hearing was conducted in Part 52 of this court. Alan Feldman, plaintiff's licensed process server, testified for the plaintiff and Agbodjan testified in his defense. Plaintiff admitted three documents into evidence, namely, the summons and complaint, Feldman's affidavit of service and Feldman's log book. Defendant did not proffer any documentary evidence. At the conclusion of hearing and oral arguments of the parties the court finds the following facts.

[*3]FINDINGS OF FACT

Alan Feldman, plaintiff's process service made three attempts to serve the summons and complaint upon Agdodjan at 860 Belmont Avenue in Brooklyn, New York, the defendant's residence. Feldman testified that he meant apartment 2 in his affidavit notwithstanding the indication to Avenue 2. It is unclear whether the attempted mailing of the pleadings to Agdodjan contained the same ambiguity in the mailing address that was contained in the affidavit of service.

In any event, the first attempt at service was made on May 21, 2008 at 7:05 a.m.; the second was made on May 21, 2008 at 12:25 p.m.; and the third was made on May 23, 2008 at 6:10 p.m. On May 24, 2008 at 6:00 a.m. Feldman affixed a copy of the summons and complaint to the outside door of the aforesaid address; and, thereafter mailed same to this address on May 28, 2008. Feldman's affidavit of service was admitted into evidence and was consistent with his testimony.

CONCLUSION

There is no dispute that service was attempted pursuant to CPLR § 308(4). However, a plaintiff may only resort to service pursuant to CPLR § 308(4) where service pursuant to CPLR § 308 (1) and (2) cannot be made with due diligence (County of Nassau v. Lotosky, 34 AD3d 414 [2nd Dept. 2006]). All three of the plaintiff's attempts at service on the defendant were made on a weekday, during normal business hours when it could reasonably have been expected that the defendant would either be working or be in transit to or from work (County of Nassau v Yohannan, 34 AD3d 620 [2nd Dept., 2006] citing Earle v. Valente, 302 AD2d 353 [2nd Dept., 2003]). Moreover, there is nothing in the record to indicate that the process server made any attempt to inquire of neighbors as to the defendants' working habits (County of Nassau v Yohannan, 34 AD3d 620 [2nd Dept., 2006], citing Walker v. Manning, 209 AD2d 691 [2nd Dept., 1994]). Under these circumstances, the attempted service of the summons and complaint herein pursuant to CPLR § 308 (4) was defective as a matter of law and jurisdiction was not acquired over defendant Agdodjan ( see Walker v. Manning, 209 AD2d 691 [2nd Dept., 1994])

Having failed to demonstrate the exercise of due diligence before attempting service of the summons and complaint pursuant to CPLR § 308(4), the complaint must be dismissed.

The foregoing constitutes the decision and order of the court.

Enter x

J.S.C.

Enter forthwith x

J.S.C.