Confidential Lending, LLC v Project E. 19, LLC
Annotate this CaseDecided on December 10, 2014
Supreme Court, Kings County
Confidential Lending, LLC, Plaintiff,
against
Project East 19, LLC, et.al., Defendants.
501265/14
Attorney for Plaintiff
John C. Re
One Grand Central Plaza
60 East 42nd Street, Suite 1420
New York, NY 10165
(212)755-6000
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of Confidential Lending LLC (hereinafter Plaintiff or movant), for an order directing service and extending the time to serve process on the Board of Managers of the 772 East 8th Street Condominium and the Board of Managers of the 776 East 8th Street Condominium (hereinafter jointly the Boards), filed on May 21, 2014.
Proposed Order directing manner of service and entending time to serve
Attorney Affirmation
Exhibit A - G
BACKGROUND
On February 12, 2014, plaintiff commenced the instant mortgage foreclosure action by filing a summons, complaint and a notice of pendency with the Kings County Clerk's office.
The complaint alleges in pertinent part, that on October 25, 2007, Project East 19 and 774 Properties (hereinafter collectively the borrowers) executed and delivered a note (the subject note) in favor of Jay Kimmel (hereinafter Kimmel) in the amount of $1,100,000.00. On the same date, the borrowers secured the note by executing and delivering a mortgage in favor of Kimmel on certain real property known as 1277 East 19th Street, Brooklyn, New York Block 6739 Lot 16 (hereinafter East 19th premises); 772 East 8th Street, Units 1 and 3, Brooklyn, New York Block 6495 Lot 1001 and 1003 (hereinafter 772 premises); 774 East 8th Street, Units 1, 2 and 3, Brooklyn, New York Block 6495 Lot 1101, 1102 and 1103 (hereinafter 774 premises). Defendant Jack Schwartz executed a guarantee agreement in favor of Kimmel, as for the security. The Board of Managers of the 772 East 8th Street Condominium and the Board of Managers of the 776 East 8th Street Condominium are alleged to be necessary parties as they are possible lienors against the properties.
No one has opposed the application.
LAW AND APPLICATION
An action is commenced by filing a summons and complaint (CPLR 304 [a]). Service of the summons and complaint shall be made within one hundred twenty days (120) after the commencement of the action (CPLR 306—b). If service is not made upon a defendant within the time provided in this section, 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 (Wilson v City of New York, 118 AD3d 983, 984 [2nd Dept 2014]).
Good cause requires a threshold showing that the plaintiff made reasonably diligent efforts to make timely service (Bumpus v New York City Transit Authority, 66 AD3d 26 at 31 [2nd Dept 2009]). Good cause will not exist where a plaintiff fails to make any effort, or at least a reasonably diligent effort, at service (Id. at 32, citing Valentin v Zaltsman, 39 AD3d 852 [2nd Dept 2007]). 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 (Id. at 32, citing Greco v Renegades, Inc., 307 AD2d 711, 712 [4th Dept 2003]).
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 (Id. at 32, citing Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105 [2001]). 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 action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant standard (Id. citing, Mead v Singleman, 24 AD3d 1142, 1144 [3rd Dept 2005]).
CPLR 308 (5) vests a court with the discretion to direct an alternative method of service of process when it has determined that the methods set forth in CPLR 308 (1), (2) and (4) are impracticable (see Home Fed. Sav. Bank v Versace, 252 AD2d 480 [2nd Dept 1998]). Although the impracticability standard is not capable of easy definition it does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308 (4) nor make an actual [*2]showing that service has been attempted pursuant to CPLR 308 (1), (2) and (4) (see In re Kaila B., 64 AD3d 647, 648 [2nd Dept 2009]; citing, Home Federal Sav. Bank v Versace, 252 AD2d 480 [2nd Dept 1998]).
In the instant matter, the summons and verified complaint was filed with the Kings County Clerk's office on February 12, 2014 accordingly the time to serve the defendants has expired as of June 12, 2014. In support of the instant application the movant has submitted an attorney affirmation and three affidavits of due diligence by David Garriga (hereinafter Garriga), a licensed process server.
John C. Re, Esq. (Re) affirms that following commencement of the action it was discovered that "even though the subject condominiums occupy one structure there are in fact supposed to be two separate condominium boards." He further affirms that "attempts have been made to locate and serve the Condo Boards" but those attempts have been unsuccessful. He also affirms that service via the Secretary of State could not be effectuated as neither the 776 nor 772 Board of Managers are valid entities in the Department of State's records. He annexes the print outs from the Department of State evidencing that the entities are not recognized. Due to the fact that the Boards are not incorporated, service should be effectuated pursuant to General Associations Law § 13. Unincorporated entities are served process through the president or treasurer (see, General Associations Law § 13).
Garriga attempted service pursuant to General Associations Law as evidenced by his affidavits of service. The affidavits state that he attempted service on the Board of Managers of the 776 East 8th Street Condominium on February 26, 2014 at 10:33. He also attempted service on the president or treasurer of the Board of Managers of the 772 and 776 East 8th Street Condominium on April 24, 2014 at 8:45, April 25, 2014 at 6:43 and April 26, at 9:01. He also submits that there was no mailbox for the Board of Managers nor did the names appear on any door or building directory.
In light of these attempts, plaintiff seeks additional time and to serve the Board of Managers by regular mail or certified mail and by post notices on the front entrance to each condominium.
The plaintiff has established that good cause exists to extend the time to serve the defendant boards of managers. It is clear that several attempts were made to serve the boards during the statutorily allotted time period. Furthermore, the Court does not see any prejudice that an extension of time would cause. However, as to the request for an alternate method of service, the plaintiff has not established that service, according to General Associations Law § 13 and CPLR 311 is impracticable. The plaintiff fails to explain what steps it took, other than the process server attempting service, to determine the identity of the president or treasurer of the Boards.
CONCLUSION
Plaintiffs motion for an order pursuant to CPLR 306—b extending their time to serve Board of Managers of the 772 East 8th Street Condominium and the Board of Managers of the 776 East 8th Street Condominium is granted. Plaintiffs are granted an extension to June 15, 2015, to serve Board of Managers of the 772 East 8th Street Condominium and the Board of Managers of the 776 East 8th Street Condominium in accordance with General Associations Law § 13.
Plaintiffs motion for an order pursuant to CPLR 308 (5) permitting Board of Managers of the 772 East 8th Street Condominium and the Board of Managers of the 776 East 8th Street Condominium denied without prejudice. Plaintiffs should continue their search for the president or treasurer of the Boards in accordance with this decision and order.
In the event the plaintiff seeks the same relief it is directed to annex the instant decision and order to the papers.
The foregoing constitutes the decision and order of this Court.
Enter: J.S.C
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