Broshears v 285 Driggs Ave. LLC

[*1] Broshears v 285 Driggs Ave. LLC 2013 NY Slip Op 51563(U) Decided on September 25, 2013 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2013
Supreme Court, Kings County

Christopher Broshears, DANIEL BLUMBERG, MARJAN BLUMBERG, MARTRESS SANSEN, SARAH IVENS MOFFETT, SAMANTHA MCGOVERN, PATRICK MCGOVERN, CAROL CARRILLO, CLEMENTINA RUGGIERI and GREGORY J. BRADT, individually, and derivatively on behalf of THE 285 DRIGGS AVENUE CONDOMINIUM, Plaintiffs,

against

285 Driggs Avenue LLC, AARON TYRNAUER, MOSHE GOLD, CHESKEL BERGER, SCARANO ARCHITECT, PLLC, ROBERT M. SCARANO, R.A., ROBERT P. SCARANO, JR., ABRAHAM JOSELOW P.C., MEHANDES ENGINEERING, P.C. and THE 285 DRIGGS AVENUE CONDOMINIUM, Defendants.



18252/11



Plaintiff Board of Managers of the 285 Driggs Avenue Condominium was represented by Rachael G. Ratner, Esq. Of Wolf Haldenstein Adler Freeman & Herz LLP. Defendants 285 Driggs Avenue LLC, Aaron Tyrnauer, Cheskel Berger and Moshe Gold were represented by Steven A. Weg, Esq. of Goldberg & Rimberg PLLC. Defendant Abraham Joselow, P.C. was represented by Martin A. Schwartzberg, Esq. of L'Abbate, Balkan, Colavita & Contini, L.L.P.

Jack M. Battaglia, J.

This action was commenced on August 10, 2011 by the filing of a Summons With Notice naming Christopher Broshears and nine other persons as Plaintiffs, "individually, and derivatively on behalf of The 285 Driggs Avenue Condominium," and naming, as Defendants, 285 Driggs Avenue LLC, Aaron Tyrnauer, Moshe Gold, Cheskel Berger, Scarano Architect, PLLC, Robert M. Scarano, R.A., Robert P. Scarano, Jr., Abraham Joselow P.C., Mehandes Engineering, P.C., and The 285 Driggs Avenue Condominium.

With a series of orders dated, respectively, December 6, 2011, March 22, 2012, and July 19, 2012, Hon. Herbert Kramer extended Plaintiffs' time, for purposes of CPLR 306-b, to serve the summons with notice until December 2, 2012.

On November 20, 2012, Plaintiffs filed pursuant to CPLR 3217(a)(1) a Notice of Voluntary Discontinuance as to defendant The 285 Driggs Avenue Condominium. On the same date, Plaintiffs filed a Supplemental Summons With Notice naming Board of Managers of The 285 Driggs Avenue Condominium as a Plaintiff, and deleting the reference to the previously named Plaintiffs "individually, and derivatively on behalf of The 285 Driggs Avenue Condominium." The caption as it appears on the Supplemental Summons With Notice (and on the respective motions now before the Court) is not shown in the court's computer database perhaps, because a supplemental summons with notice is not explicitly recognized by the CPLR. (See CPLR 305; CPLR 3025.) [*2]

Defendants submit affidavits of service that purport to make service of the Summons With Notice, Justice Kramer's orders, and the Supplemental Summons With Notice on defendants Aaron Tyrnauer, Moshe Gold, and Cheskel Berger pursuant to CPLR 308(2), with proof of service filed as to defendants Tyrnauer and Gold on December 20, 2012 and as to defendant Berger on December 6, 2012. Since the affidavits of service were not filed by the December 2, 2012 deadline specified by Justice Kramer, service was not made prior to expiration of the extension (see Sorrento v Rice Barton Corp., 286 AD2d 873, 874 [4th Dept 2001]), assuming service was otherwise effective.

Plaintiffs submit affidavits of service that purport to make service on defendants Robert M. Scarano, R.A., and Robert P. Scarano, Jr., pursuant to CPLR 308(2) with proof of service filed on December 20, 2012, and upon defendants Scarano Architect, PLLC, 285 Driggs Avenue LLC, Abraham Joselow P.C., and Mehandes Engineering, P.C., by delivery to the Secretary of State on November 21, 2012. Service on defendants Robert M. Scarano, R.A., and Robert P. Scarano, Jr., was not made prior to the December 2, 2012 deadline specified by Justice Kramer. (See CPLR 308[2].)

A Notice of Limited Appearance dated January 10, 2013 was served on behalf of defendants Moshe Gold and Cheskel Berger "for the sole purpose of contesting personal jurisdiction and service of process," and demanding a copy of the Complaint. (See CPLR 3012[b].) No other appearances and no answers are included among the papers filed on the pending motions.

The Affirmation of Steven A. Weg (¶12) asserts that a Complaint "was served on or about February 22, 2013," but it is not clear on whose behalf the acknowledgment is being made. Defendants 285 Driggs Avenue LLC, Aaron Tyrnauer, Moshe Gold, and Cheskel Berger have moved for certain relief, described below, but it does not show that 285 Driggs Avenue LLC and Aaron Tyrnauer have previously appeared. In any event, Plaintiffs submit affidavits of service that purport to show service of the Complaint pursuant to CPLR 308(2) on defendant Moshe Gold on January 28, 2013, with proof of service filed on February 19, and again on March 11, 2013, with proof of service filed on March 22, and on defendant Cheskel Berger on March 11, 2013, with proof of service filed on March 22. Again, no answers are included among the papers submitted by any party.

With a motion served on April 23, 2013, defendants 285 Driggs Avenue LLC, Aaron Tyrnauer, Moshe Gold, and Cheskel Berger move for dismissal of the Complaint pursuant to various provisions of CPLR 3211, as well as to compel arbitration pursuant to CPLR 7503(a). Plaintiffs cross-move, "pursuant to CPLR 306-b, 2004, 2012(d), and/or 2005," for an order extending their time to "effectuate service of process" upon defendants Moshe Gold and Cheskel Berger. The Court has noted the statement by Plaintiffs' counsel that "the Individual Plaintiffs have agreed to withdraw their claims and have the action proceed with the Board as the sole plaintiff" (see affirmation in support of cross-motion ¶ 8.) Since there is no evidence of a stipulation or order of discontinuance (see CPLR 3217), the Court considers the motion as having been made by all Plaintiffs.

Timely service of the Notice of Limited Appearance is not denied by Plaintiffs. Assuming that CPLR 3211 may be a vehicle for a motion to dismiss a summons with notice for lack of personal [*3]jurisdiction, the Notice of Motion does not purport to seek dismissal on that ground.

Except to the extent that it seeks to compel arbitration, the pending motion by defendants 285 Driggs Avenue LLC, Aaron Tynauer, Moshe Gold, and Cheskel Berger (the "Moving Defendants") seeks dismissal of a complaint that neither the Moving Defendants nor Plaintiffs show has been filed. Since the Affirmation of Steven A. Weg states that the Complaint was served on February 22, 2013, and this motion was not served until April 23, 2013, the motion is untimely, and Moving Defendants are in default in not answering. A default in not answering is a separate default from a default in failing to appear. (See U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1167 [2d Dept 2010].) Moving Defendants do not seek leave to serve a late answer (see CPLR 3012[d]), nor do they show good cause for the delay in making the motion, or even address the untimeliness of the motion. (See U.S. Bank N.A. v Gonzalez, 99 AD3d 694, 694-95 [2d Dept 2012].)

To the extent, therefore, Moving Defendants seek dismissal of the Complaint pursuant to CPLR 3211, the motion must be denied. (See id.) On review of Moving Defendants' papers, however, it seems clear that they are moving to dismiss not for lack of personal jurisdiction, which is not mentioned, but for Plaintiffs' failure to serve them within the 120 days required by CPLR 306-b, as extended by Justice Kramer's orders. Since this ground simply mirrors the subject of Plaintiffs' cross-motion, there can be no prejudice in the Court's consideration of it.

First, however, the Court must dispose of Moving Defendants' application to compel arbitration. Moving Defendants submit copies of, what purport to be, Purchase Agreements with various Plaintiffs, none of which contains an acknowledgment as to the signatures or is otherwise authenticated. (See Prince, Richardson on Evidence §9-101 et seq. [11thEd., Farrell].) "A private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness are first properly established." (Fairlane Fin. Corp. v Greater Metro Agency, Inc., 2013 NY Slip Op 5875 [2d Dept, September 18, 2013] [quoting NYCTL 1998-2 Trust v Santiago, 30 AD3d 572, 573 (2d Dept 2006)].) For this reason alone, the application would be denied.

Moreover, the Arbitration provisions (¶34) in three of the Purchase Agreements are incomplete in that they contain a blank for the name of the person with whom the parties must consult before arbitration may be had, and in one of the Purchase Agreements the Arbitration provision is entirely crossed out. Moving Defendants make no showing that the consultation condition has been complied with, or that it should be ignored.

CPLR 306-b provides, "If service is not made upon a defendant within [120 days after the filing of the summons with notice], the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." Justice Kramer's successive orders, extending the time for service until December 2, 2012, are law of the case. (See People v Evans, 94 NY2d 499, 504-05 [2000].)

As stated above, service was not made by the deadline specified by Justice Kramer on [*4]defendants Aaron Tyrnauer, Moshe Gold, Cheskel Berger, Robert M. Scarano, R.A., and Robert P. Scarano, Jr. Only defendants Gold and Berger move for dismissal on that ground, and CPLR 306-b requires a motion for dismissal. Plaintiffs' cross-motion in effect acknowledges the failure to serve defendants Gold and Berger within the time required by CPLR 306-b, as extended by Justice Kramer's orders, and seeks a further extension until June 17, 2013, the date by which service upon them was purportedly made.

Prior to the December 2, 2012 deadline specified in Justice Kramer's third ex parte order, Plaintiffs applied to this Court for a further extension. On November 14, 2012, the application was denied, as follows:

"Denied, without prejudice to renewal in the context of a motion by one or more Defendants pursuant to CPLR §306-b. This Court does not deem it appropriate to allow itself to be enlisted in Plaintiff's attempt to withhold from Defendants information that Plaintiff acknowledges would likely be considered material in settlement negotiations."

The papers submitted to the Court in connection with the fourth ex parte application for an extension are not included among the papers submitted on Plaintiffs' cross-motion. Counsel's affirmation in support, however, includes the information that caused this Court's concerns, i.e., Plaintiffs did not even attempt to serve the Summons With Notice before the fourth ex parte application in November 2012, which was more than a year after the filing of the Summons With Notice on August 10, 2011 (see affirmation in support of cross-motion ¶ B 13.) During that time, Plaintiffs were attempting to mediate the dispute through the Attorney General's Office, and they "did not advise the defendants that they had commenced the action" because they "were concerned that any settlement discussions . . . would come to a halt if it was being actively litigated" (see id. ¶¶ B 9, 10.)

In any event, having only attempted to serve Defendants in the latter part of November 2012, after this Court's denial of the fourth ex parte application, Plaintiffs "encountered extraordinary difficulty in [the] attempts to serve Gold and Berger" (see id. ¶ 14.) They recite at some length their efforts and difficulty in locating defendants Gold and Berger (see id. ¶¶ C14-18, D 19-21, 4-6 [inconsistent numbering in original].) Nowhere, however, is there any explanation for the failure to locate defendants Gold and Berger before either filing the Summons With Notice in August 2011 or during the 15 months thereafter.

In now seeking a further extension until June 17, 2013, Plaintiffs submit an affidavit of service purporting to show delivery to Raizy Gold, defendant Moshe Gold's wife, on June 14, 2013, with filing of the affidavit of service on June 17; and an affidavit of service showing delivery to "Jacob Berger" on June 14, 2013.

" Good cause' and interest of justice' are two separate and independent statutory standards . . . To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service . . . Good cause will not exist where a plaintiff fails to make any effort at service . . . , or fails to [*5]make at least a reasonably diligent effort at service . . . By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control . . .

If good cause for an extension is not established, courts must consider the interest of justice' standard of CPLR 306-b . . . The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their determinations, may consider the presence or absence of diligence, along with other factors . . . The interest of justice standard is broader than the good cause standard . . . , as its factors also include the expiration of the statute of limitations, the meritorious nature of the cause of action, the length of the delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant." (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31-32 [2d Dept 2009]; see also Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-06 [2001].)

Another specific factor that has been identified is whether the defendant "had actual notice of the claim and/or of the action." (See Rosenzuicig v 600 N. St., LLC. 35 AD3d 705, 706 [2d Dept 2006]; see also Slate v Schiavone Constr. Co., 4 NY3d 816, 817 [2005]; Leader v Maroney, Ponzini & Spencer, 97 NY2d at 107 ["the defendants had no notice of plaintiffs' claims for nearly three years after their accrual, leading to an inference of substantial prejudice"].)

Plaintiffs fail to establish reasonable diligence in attempting service on either defendant Moshe Gold or Cheskel Berger. Plaintiffs point to no effort to locate a service address for either Defendant during the 15-month period from commencement of the action in August 2011 until this Court's denial in November 2012 of the fourth ex parte application for an extension. In support of the instant motion, Plaintiffs submit an affidavit of Thomas Fitzpatrick, a licenced private investigator, who asserts that he was retained on January 21, 2013 by Plaintiffs' counsel to locate defendants Gold and Berger. They also submit an affidavit of Jonathan T. Ripps, the managing director of a process service company, who performed a "skip trace" for Gold and Berger. Assuming that the affidavit, submitted for the first time in reply, may even be considered (see Bedonski v County of Suffolk, 67 AD3d 616, 617 [2d Dept 2009]), Mr. Ripps asserts that he was retained by Plaintiffs' counsel on November 20, 2012.

While Justice Kramer's ex parte orders provide sufficient cause for not effectuating service on Defendants before December 2, 2012, the expiration date of the last extension, they do not provide good cause for Plaintiffs' failure to attempt to determine a service address. Had such effort been made, when this Court denied Plaintiffs' fourth ex parte application Plaintiffs may well have been able to make service before Justice Kramer's deadline, and presumably would have done so well before June 2013.

Plaintiffs' contention that they "initially postponed service of the summons out of respect for judicial economy, in order to pursue alternative means of dispute resolution" (see reply affirmation in further support of cross-motion at 7) is disingenuous at best. Settlement efforts, including mediation, are routinely made during litigation, and, indeed, can be facilitated by the articulation of [*6]positions, development of evidence, and rulings by the court. In any event, the court has now "economically" addressed four ex parte applications and two motions without even looking at the merits.

Plaintiffs fare no better on the "interest of justice" ground. Although they state that they "filed the summons when they did solely for statute of limitations purposes" (see affirmation in support of cross-motion ¶ 9), they make no showing that the statute was about to expire (or has expired) as to defendants Moshe Gold and Cheskel Berger. Indeed, Plaintiffs describe their claim against these Defendants as arising from their status as "sponsor-designated members" of the Board of Managers of the Condominium (see memorandum of law in opposition to the motion to dismiss at 22-23), and they assert that defendants Gold and Berger served as Board members from March 2009 until August 22, 2011 (see reply affirmation in further support of cross-motion ¶ 32), a date after the commencement of the action.

Plaintiffs also contend that "both Gold and Berger had actual knowledge of Plaintiff's [sic] claims" by reason of their knowledge of the complaints of unit owners and the mediation (see memorandum of law in opposition to motion to dismiss at 30), but there is no evidence, or even an assertion, that Gold and Berger knew of claims against them personally, or that an action had been filed. Indeed, the purpose of the successive ex parte applications was to deprive them of that knowledge.

As for prejudice, it can inferred from a lack of notice of the claim (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 107.) Most importantly, where a defendant is purposely deprived of notice in furtherance of the stated interest of a plaintiff, prejudice must, at the least, be presumed. Here, Plaintiffs do not rebut that presumption.

To the extent that Plaintiffs also seek relief pursuant to CPLR 2004 (Extensions of time generally), CPLR 2005 (Excusable delay or default), and CPLR 3012(d) (Extension of time to appear or plead), even assuming their applicability here they cannot provide any greater consideration to a plaintiff than that specifically provided by CPLR 306-b.

Although the Court is generally inclined to clear a record of procedural errors or uncertainties, in light of the procedural muddle created here the Court will proceed cautiously and await an appropriate motion or stipulation.

Defendants' motion is granted only to the extent that the Summons With Notice and Supplemental Summons With Notice are dismissed as against defendants Moshe Gold and Cheskel Berger; and is otherwise denied.

Plaintiffs' cross-motion is denied. [*7]

September 25, 2013___________________

Jack M. Battaglia

Justice, Supreme Court