Greene v Kevin D. Greene, LLC

[*1] Greene v Kevin D. Greene, LLC 2017 NY Slip Op 51675(U) Decided on December 7, 2017 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2017
Supreme Court, Kings County

Keith B. Greene, IN HIS CAPACITY OF TRUSTEE/EXECUTOR OF THE ESTATE AND TRUST OF CORA SAMPLE A/K/A CORA LEE SAMPLE, Plaintiff,

against

Kevin D. Greene, LLC, KEVIN D. GREENE, NEW YORK COMMUNITY BANCORP, INC., D/B/A ROOSEVELT SAVINGS BANK, A/K/A NEW YORK COMMUNITY BANK, et.al., Defendants.



510212/14



Attorney for Plaintiff

Kristian Karl Larsen, Esq.

23 7th Avenue

Brooklyn, NY 11217

(646) 428-4812
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of Keith B. Greene, in his capacity of Trustee/Executor of the Estate and

Trust of Cora Sample a/k/a Cora Lee Sample (hereinafter the plaintiff of Keith B. Greene) filed on September 11, 2017 under motion sequence number three, for an order pursuant to CPLR 3215 granting a default judgment against defendant Lawrence L. Greene for failing to appear or answer the complaint.

Notice of motion

Affirmation in support

Exhibits A—H

Proposed judgment

BACKGROUND

On October 30, 2014, plaintiff commenced the instant action for among other things, breach of contract and breach of fiduciary duty by filing a summons and complaint (hereinafter the commencement papers) with the Kings County Clerk's office. No defendant has opposed the instant motion. Defendant Lawrence L. Greene has not appeared in the action or answered the complaint.

The complaint contains eighty-two allegations of fact in support of seven causes of action. The first, second and third cause of action are asserted against New York Community Bank for breach of contract, breach of fiduciary duty and violation of General Business Law § 349. The fourth, fifth and sixth cause of action are asserted against Lawrence L. Greene for breach of fiduciary duty, unjust enrichment and fraudulent conveyance. The seventh cause of action is asserted against defendant Kevin D. Greene and Kevin D. Greene, LLC for wrongful conversion.

LAW AND APPLICATION

Keith B. Greene seeks a default judgment against Lawrence L. Greene based on his failure to appear or answer the complaint. On a motion for leave to enter a default judgment pursuant to CPLR 3215, the plaintiff must prove proper service of the summons and complaint on the defendant (Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept 2011]). Additionally, the plaintiff must submit proof of the defendants' default in answering or appearing and must submit proof of facts sufficient to establish a viable claim (Id.; also see CPLR 3215 [f]). CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit "made by the party" (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]).

Service of the Commencement Papers

A plaintiff seeking to assert jurisdiction over a defendant must "bear the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process" (Gottesman v Friedman, 90 AD3d 608, 609 [2nd Dept 2011] quoting Santiago v Honcraft, 79 AD3d 847, 848 [2nd Dept 2010]).

CPLR 306-b provides in pertinent part as follows:

Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding....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.

There is no dispute that the instant action was commenced on October 30, 2014. Plaintiff has annexed an affidavit of the service of the commencement papers on defendant Lawrence L. Greene showing attempted service pursuant to CPLR 308 (4). On March 2, 2017, the affidavit of service was electronically filed. In accordance with CPLR 308 (4) service was, therefore, purportedly completed on March 12, 2017, approximately twenty months after the action was [*2]commenced. Plaintiff did not serve Lawrence L. Greene within one hundred twenty days after the commencement of the action or seek leave of the Court pursuant to CPLR 306-b to extend the time to serve the defendant.

Tolling of CPLR 306-b Pursuant to CPLR 207

CPLR § 207 pertains to defendants absent from the state or residing in the state under a false name as provides in pertinent part as follows:

If, when a cause of action accrues against a person, he is without the state, the time within which the action must be commenced shall be computed from the time he comes into or returns to the state. If, after a cause of action has accrued against a person, that person departs from the state and remains continuously absent therefrom for four months or more, or that person resides within the state under a false name which is unknown to the person entitled to commence the action, the time of his absence or residence within the state under such a false name is not a part of the time within which the action must be commenced. If an action is commenced against a person described above, the time within which service must be made on such person in accordance with subdivisions (a) and (b) of section three hundred six-b of this chapter shall be computed in accordance with this section.

This section does not apply:

1. while there is in force a designation, voluntary or involuntary, made pursuant to law, of a person to whom a summons may be delivered within the state with the same effect as if served personally within the state; or2. while a foreign corporation has one or more officers or other persons in the state on whom a summons against such corporation may be served; or3. while jurisdiction over the person of the defendant can be obtained without personal delivery of the summons to the defendant within the state.

Plaintiff contends that he should get the protection of the tolling provision of CPLR 207. CPLR 207 imposes a toll to specific classes of defendants who are outside the State, not only to the time within which an action must be commenced, but also for the time deadlines for serving process and filing proof of service with a court. If the defendant fits within any one of the three descriptions of the first two sentences of the statute, the toll for absence applies not only to the time within which the action must be commenced but also to the time periods for serving process and filing proof of service as set forth in CPLR 306-b. (see Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, by Vincent Alexander, CPLR C207:1, page 559).

The instant motion is supported by an affirmation of Kristian L. Larsen, plaintiff's counsel and numerous annexed exhibits. The affirmation neither asserts not demonstrates personal knowledge of when the cause of action accrued against Lawrence L. Greene and whether he was in the state, out of the state, or had departed the state at the time the action accrued.

There is no other sworn declaration attesting to these essential facts. As a result, plaintiff has failed to prove that CPLR 207 is applicable (see, Shelkowitz v Rainess, 57 AD3d 337 [1st Dept 2008]) and has failed to establish that it properly served Lawrence L. Greene with the commencement papers in accordance with CPLR 306-b.

The plaintiff is alleging that defendants Lawrence L. Greene committed a tortious act within the State of New York. Assuming that he is an out of state domiciliary CPLR 313 and CPLR 302 (a) (2) permits service under the provision of CPLR 308. It is noted that service [*3]pursuant to CPLR 308 (4) may be used only where personal service under CPLR 308 (1) and (2) cannot be made with "due diligence" (CPLR 308 [4]; see Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759, 759—760 [2nd Dept 2013]). Based on the foregoing and in the interest of judicial economy, the Court did not address the issue of whether the plaintiff demonstrated due diligence before resorting to service pursuant to CPLR 308 (4).

Proof of the Facts Constituting the Claim

The instant complaint was not verified and therefore could not serve as an affidavit pursuant to CPLR 105 (u). As previously indicated, plaintiff did not submit his own affidavit setting forth the facts constituting the claim, the default, and the amount due (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]). In sum, plaintiff did not prove that service of the commencement papers was proper or that Lawrence L. Greene defaulted in answering the complaint. Nor did plaintiff submit an affidavit setting forth his claim.

CONCLUSION

Plaintiff's motion for an order pursuant to CPLR 3215 granting a default judgment

against defendant Lawrence L. Greene is denied without prejudice.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.