Pu v Lifeng Wang

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Pu v Lifeng Wang 2018 NY Slip Op 30929(U) May 11, 2018 Supreme Court, New York County Docket Number: 653757/2016 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 05/14/2018 10:09 AM 1] INDEX NO. 653757/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/14/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice --------------------------------------------------------------------------------X RICHARD PU 653757/2016 INDEX NO. Plaintiff, 05/08/2018 MOTION DATE -v004 005 MOTION SEQ. NO. LIFENG WANG, aka ALICE WANG, Defendant. DECISION AND ORDER ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80,81,82, 83, 84, 85,86, 87,88,89,90,91, 92,93,94,95, 96, 97, 98,99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 140, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 177, 178 VACATEwere read on this application to/for ~ - ,ft p ,e, ft ,ft, • I I ,ft, - ~ - - • CI I~ ~ e T - ft · - I ft ft ft I ft ~ ~ The following e-filed documents, listed by NYSCEF document number (Motion 005) 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 141, 142, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 179, 180 were read on this application to/for JUDGMENT - DEFAULT ORDER Upon the foregoing documents, it is ORDERED that the motion of defendant to vacate the default judgment entered on March 23, 2018 (Motion Sequence Number 004) is GRANTED, and the judgment entered on March 23, 2018 is VACATED; and it is further ORDERED THAT the complaint is dismissed pursuant to CPLR 5015(a) (4); and it is further 653757/2016 PU, RICHARD vs. WANG, LIFENG Motion No. 004 005 Page 1of5 1 of 5 [*FILED: NEW YORK COUNTY CLERK 05/14/2018 10:09 AM 2] INDEX NO. 653757/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/14/2018 ORDERED that the motion of plaintiff for a default judgment (Motion Sequence Number 005) is DENIED; and it is further ORDERED that the Clerk shall enter judgment dismissing the complaint, accordingly. DECISION By notice of motion dated August 29, 2016 (Motion Sequence No. 001), plaintiff sought "an order pursuant to CPLR 308(5) granting leave to serve defendant Lifeng Wang by mail at the address given by her in Newark, CA", specifically at 34972 Newark Boulevard, Newark, CA (emphasis added). In his affirmationi in support of such motion; plaintiff attached a complaint dated March 10, 2015 and an affidavit of service, sworn on April 14, 2015, of such complaint in Lifeng Wang v Han Su, Index No. 152356/2015 (Supreme Court, New York County) . Such complaint states that the residence of Lif eng Wang is 34972 Newark Boulevard, California, CA, and that the residence of Han Su is 75 Wall Street, Unit 29C, New York, New York 10005. The affidavit of service states that the summons and complaint were served on Han Su at her dwelling at 75 Wall Street, Unit 29C, New York, New York 10005 .. Plaintiff's motion for leave to use alternative service in. the action at bar was granted without opposition. The Order dated December 11, 2017 stated, in pertinent part: 653757/2016 PU, RICHARD vs. WANG, LIFENG Motion No. 004 005 Page 2 of 5 2 of 5 [*FILED: NEW YORK COUNTY CLERK 05/14/2018 10:09 AM 3] INDEX NO. 653757/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/14/2018 "plaintiff shall effectuate service of process in this action by delivering the summons and complaint and a copy of this order with notice of entry, in an envelope bearing the legend "personal and confidential" and addressed to defendant tat 34972 Newark Boulevard, Newark, California, by regular first class mail, and as proof of service a certificate of mailing in the docket of the Clerk of the County of New York, within twenty (2) days of entry of this order". By Order dated March 14, 2018, which resolved Motion Sequence Number 002 brought by plaintiff, this court granted plaintiff a judgment of default against defendant. In her supporting papers on the motion to vacate such default (Motion Sequence Number 004), defendant shows that on plaintiff's motion seeking a default judgment, his supporting affidavits of service, which are appended to his moving papers, each list 34792 Newark Boulevard, as the address where process and the default motion papers were served on defendant, instead of the address where plaintiff sought leave to effectuate service upon defendant and that the court granted, which was 34972 Newark Boulevard. Plaintiff does not deny the error, and thus, plaintiff did not accomplish "expedient" service that the court permitted pursuant to CPLR 308(5). However, plaintiff now moves for leave for another default judgment (Motion Sequence Number 005). The basis of his motion is that on September 8, 2017, he caused service to be effectuated on plaintiff, by having his process server deliver 653757/2016 PU, RICHARD vs. WANG, LIFENG Motion No. 004 005 Page 3 of 5 3 of 5 [*FILED: NEW YORK COUNTY CLERK 05/14/2018 10:09 AM 4] INDEX NO. 653757/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/14/2018 the summons and complaint to defendant's alleged residence at 75 Wall Street, Unit 29C, New York, New York 10005. However, the assertion of plaintiff that defendant resides at 75 Wall Street, Unit 29C, New York, New York 10005, is belied by the supporting papers that he filed in support of his motion for leave to serve In the defendant by mail at 34972 Newark Boulevard, Newark, CA. affidavit of service in such papers, the process server stated that he served one Han Su, at her resided at 75 Wall Street, Unit 29C, New York, New York 10005. In fact, in his memorandum of law in support of his motion for an order granting leave to serve process by mail on the Newark Boulevard address, plaintiff asserted "Plaintiff made concerted efforts to ascertain Defendant's true address, which Plaintiff believes, but cannot be sure is a Fremont, CA address ... Plaintiff process server advised Plaintiff that, as the Fremont address, Defendant is avoiding service". Thus, the evidence that plaintiff placed before the court • on his motion for permission to use alternative, i.e. "expedient", service negates his current contention that defendant resides at 75 Wall Street, Unit 29C, New York, New 653757/2016 PU, RICHARD vs. WANG, LIFENG Motion No. 004 005 Page 4 of 5 4 of 5 [*FILED: NEW YORK COUNTY CLERK 05/14/2018 10:09 AM 5] INDEX NO. 653757/2016 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/14/2018 York 10005. Thus, he has not prima established that he properly served defendant at her residence in accordance with either CPLR § 308(1) or§ 308(5) and therefore this court lacks subject matter jurisdiction over the defendant. The default judgment filed on Mach 23, 2018 must be vacated-and the complaint dismissed pursuant to CPLR 5015 (a) (4). ' 5/11/2018 DATE CHECK ONE: x CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED x GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT D D OTHER REFERENCE CPLR 2106 (a) requires an attorney, who is a party to an action, to submit statements by affidavit, in lieu of an affirmation. As plaintiff pro-se is an attorney, his affirmation violated such rule. i 653757/2016 PU, RICHARD vs. WANG, LIFENG Motion No. 004 005 Page 5 of 5 5 of 5

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