Owens v Schief

[*1] Owens v Schief 2010 NY Slip Op 51125(U) [28 Misc 3d 1202(A)] Decided on June 22, 2010 Supreme Court, Suffolk County Mayer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 2, 2010; it will not be published in the printed Official Reports.

Decided on June 22, 2010
Supreme Court, Suffolk County

Robert Owens, Plaintiff(s),

against

Paul Schief, DAVID SCHIEF, JOSEPH V. MEHLER, BARBARA SPRAGUE, ISLAND HOMES REALTY OF L.I., INC., VCH CONTRACTING LLC, CABINETS DIRECT, SHORE PROPERTIES INC. and RICHARD J. ZIMMERMAN, ESQ., Defendant(s).



16967-2008



Howard E. Greenberg, Esq.

Attorneys for Plaintiff

180 East Main Street

Smithtown, New York 11787

Richard Zimmerman, Esq.

Attorney for Deft Zimmerman

139-27 Queens Boulevard

Briarwood, New York 11435

Pollack, Cooperman & Fisher, P.C.

Attorneys for Defts Sprague & Shore Properties

5372 Merrick Road

Massapequa, New York 11758

Paul Schief

David Schief

VCH Contracting LLC

Cabinets Direct

Defendants Pro Se

80 Redington Street

Bay Shore, New York 11706

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated February 25, 2010, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the branch of the unopposed motion (seq. #002) by the plaintiff, which seeks an order granting a default judgment against defendants VCH Contracting, LLC and Cabinets Direct, on the grounds that said defendants have failed to comply with this Court's prior directives, is hereby granted; and it is further

ORDERED that the branch of the unopposed motion (seq. #002) by the plaintiff, which seeks an order granting a default judgment pursuant to CPLR §3215(a) against defendants, Joseph V. Mehler and Island Homes Realty of L.I., Inc., on the grounds that said defendants have failed to answer or otherwise appear in this action, is hereby denied and the action against those defendants is hereby dismissed; and it is further

ORDERED that the movant shall promptly serve a copy of this Order upon the defaulting parties by certified mail (return receipt requested) and by first class mail, and shall thereafter promptly file the affidavit(s) of service with the Clerk of the Court; and it is further

ORDERED that the movant shall also promptly serve a copy of this Order upon all other appearing parties, or their attorneys if represented by counsel, by first class mail, and shall thereafter promptly file the affidavit(s) of service with the Clerk of the Court; and it is further

ORDERED that, pursuant to CPLR §3215(d), all proceedings for the entry of a judgment or the making of an assessment of damages, including any claimed attorneys fees, against the defaulting parties are hereby stayed until the time of or following the trial or other disposition of this action; and it is further

ORDERED that the parties are reminded that a Compliance Conference in this matter is [*2]scheduled for August 17. 2010, at 9:30 a.m., in the courtroom of the undersigned, Room A-259, Part 17, at the courthouse located at One Court Street, Riverhead, New York.

With regard to defendants VCH Contracting, LLC and Cabinets Direct, they have continually failed to comply with this Court's October 22, 2009 Order, which granted their former counsel's motion to withdraw as their attorney. That Order stayed the proceedings to permit said defendants time to retain new counsel, and required the parties to appear with new counsel at the Compliance Conference scheduled for November 24, 2009. The Order included the following language: "failure of a party or their counsel to appear at the next court conference or to otherwise comply with the directives set forth in this Order may result in dismissal of this case, the striking of a party's pleadings, and/or any other appropriate sanction under the CPLR and/or Court Rules" (emphasis in original).

Despite the clearly expressed consequences for failure appear, those defendants failed to appear at the November 24, 2009 conference, as well as at the subsequently scheduled conferences of January 26, 2010, March 23, 2010, and May 4, 2010. Accordingly, the plaintiff's request for a default judgment against VCH Contracting, LLC and Cabinets Direct for their failure to comply with this Court's directives is hereby granted. The application for a default judgment against defendants, Joseph V.Mehler and Island Homes Realty of L.I., Inc., however, is hereby denied.

With regard to defendant Joseph V. Mehler, the moving papers establish that he was purportedly served via the "nail and mail" method of service on June 18, 2008. The affidavit of such purported service was filed with the County Clerk on June 23, 2008. Defendant Island Homes Realty of L.I., Inc. was served on June 10, 2008 by service upon the Secretary of State, and the affidavit of such service was filed on or about June 14, 2008. The plaintiff's motion for a default, however, was not filed until March 3, 2010.

Pursuant to CPLR §3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed" (emphasis supplied). Since the plaintiff failed to seek judgment within one year of the alleged defaults of defendants Joseph V.Mehler and Island Homes Realty of L.I., Inc. and failed to prove a reasonable excuse for the delay, the motion for default against those defendants must be denied and the complaint against them must be dismissed (CPLR §3215(c); Riggi v Sommerville, 273 AD2d 290, 710 NYS2d 543 [2d Dept 2000]; Demery v New York, 149 AD2d 405, 542 NYS2d 971 [2d Dept 1989]; Manago v Giorlando, 143 AD2d 646, 533 NYS2d 106 [2d Dept 1988]).

Even if the plaintiff had moved for default within the statutorily prescribed time, a default against individual defendant, Joseph V. Mehler, would nevertheless be denied for failure of the plaintiff to meet the "due diligence" requirement for "nail and mail" service under CPLR §308(4) and, therefore, failure to establish jurisdiction over that defendant. In this regard, the "due diligence" portion of the plaintiff's affidavit of service indicates that prior to the June 18, 2008 "nail and mail" [*3]service upon Mr. Mehler, the process server attempted to deliver the summons and complaint to the defendant on May 15, 2008 (Thurs.) at 7:32 a.m., on May 21, 2008 (Wed.) at 1:10 p.m., on June 9, 2008 (Mon.) at 12:43 p.m., and on June 12, 2008 (Mon.) at 7:50 p.m. There is no indication that the process server ever attempted to inquire about or serve Mr. Mehler at his place of employment.

The "nail and mail" method of service pursuant to CPLR §308(4) may be used only where personal service under CPLR §308(1) and (2) cannot be made with "due diligence" (Lemberger v Khan, 18 AD3d 447, 794 NYS2d 416 [2d Dept 2005]). The due diligence requirement of CPLR §308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received (McSorley v Spear, 50 AD3d 652, 854 NYS2d 759 [2d Dept 2008]; Estate of Waterman v Jones, 46 AD3d 63, 843 NYS2d 462 [2d Dept 2007]; O'Connell v Post, 27 AD3d 630, 811 NYS2d 441 [2d Dept 2006]; Scott v Knoblock, 204 AD2d 299, 611 NYS2d 265 [2d Dept 1994]; Kaszovitz v Weiszman, 110 AD2d 117, 493 NYS2d 335 [2d Dept 1985]).

What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality (McSorley v Spear, supra ; Estate of Waterman v Jones, supra ). Attempting to serve a defendant at his or her residence without showing that there was a genuine inquiry about the defendant's whereabouts and place of employment is fatal to a finding of due diligence as required by CPLR §308(4) (Id.; see also, Sanders v Elie, 29 AD3d 773, 816 NYS2d 509 [2d Dept 2006]). Further, absent any evidence that the process server attempted to determine that the address where service was attempted was, in fact, the actual dwelling or usual place of abode of the defendant(s), such as by searching telephone listings or making inquiries of neighbors, the requirement of CPLR §308(4), that service under CPLR §308(1) and (2) first be attempted with "due diligence," is not met (Kurlander v A Big Stam, Corp., 267 AD2d 209, 699 NYS2d 453 [2d Dept 1999]).

Since the plaintiff has failed to meet the "due diligence" requirement for "nail and mail" service upon defendant Mehler under CPLR §308(4), jurisdiction over that defendant has not been established (Sanders v Elie, supra ; Earle v Valente, 302 AD2d 353, 754 NYS2d 364 [2d Dept 2003]; Annis v Long, 298 AD2d 340, 751 NYS2d 370 [2d Dept 2002]) Earle v Valente, supra ; Annis v Long, supra ).

Based on the foregoing, the plaintiff's motion for a default judgment is granted as to defendants VCH Contracting, LLC and Cabinets Direct, and denied with the complaint dismissed as to defendants Joseph V. Mehler and Island Homes Realty of L.I., Inc. Pursuant to CPLR §3215(d), all proceedings for the entry of a judgment or the making of an assessment of damages, including any claimed attorneys fees, against the defaulting parties are hereby stayed until the time of or following the trial or other disposition of this action.

Dated:June 22, 2010 [*4]

Peter H. Mayer, J.S.C.