Thomas v Halvey

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Thomas v Halvey 2019 NY Slip Op 33733(U) December 20, 2019 Supreme Court, Kings County Docket Number: 515554/2018 Judge: Lara J. Genovesi 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: 1] KINGS COUNTY CLERK 12/24/2019 12:06 PM NYSCEF DOC. NO. 20 INDEX NO. 515554/2018 RECEIVED NYSCEF: 12/24/2019 .. At an IAS Term, Part 34 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 20th day of December 2019. PRESENT: HON. LARA J. GENOVESI, J.S.C. -------------------------------------------------------------)( JOHN THOMAS, Index No.: 515554/2018 Plaintiff, DECISION & ORDER -againstCHRISTOPHER HAL VEY and JOHN DOE, Defendants. -------------------------------------------------------------)( Recitation, as required by CPLR §2219(a), of the motion: p~pers considered in the review of this Papers Numbered: Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed_ _ _ _ _ _ _ __ 1 Opposing Affidavits (Affirmations) _ _~------ 2 Reply Affidavits (Affirmations)_ _ _ _ _ _ _ _ __ 3 Other Papers: Supplemental Affirmation 4 Introduction Defendant, Christopher Halvey's moves by motion sequence number 1, pursuant to CPLR § 321 l(a)(8) for dismissal of the action for lack of personal jurisdiction. Plaintiff opposes this application. 1 of 6 [*FILED: 2] KINGS COUNTY CLERK 12/24/2019 12:06 PM NYSCEF DOC. NO. 20 INDEX NO. 515554/2018 RECEIVED NYSCEF: 12/24/2019 Background and Procedural History This action is for personal injuries allegedly sustained in a motor vehicle accident that occurred on July 31, 2015. The summons and complaint were served on July 31, 2018. Issue was joined on December 7, 2018 wherein the defendant plead the affirmative defense of lack of personal jurisdiction. At oral argument on December 4, 2019, the issue of whether the mailed copy of the summons and complaint contained the words "personal and confidential" was raised. Further, plaintiffs e-filed opposition contained an unsigned and unnotarized affidavit of the process server. This Court provided the parties the opportunity to address these issues. The matter was adjourned to December 18, 2019. Defendant was given the limited opportunity to provide supplemental papers to include a clear copy of the front and back of the envelope and relevant case law. Plaintiff was permitted to provide supplemental papers to include a signed and notarized affidavit by his process server and relevant case law. On December 18, 2019, the rescheduled oral argument date, plaintiff failed to appear. 1 Plaintiffs counsel did e-filed a signed and notarized affidavit from the process server. The defendant e-filed a supplemental affirmation. 1 The Court requested that the defendant contact plaintiff when he did not answer either calendar call. In response, plaintiff spoke with t~e Part Clerk and stated that he is not appearing for the or~I argument, contrary to the part rules. 2 2 of 6 [*FILED: 3] KINGS COUNTY CLERK 12/24/2019 12:06 PM NYSCEF DOC. NO. 20 INDEX NO. 515554/2018 RECEIVED NYSCEF: 12/24/2019 Discussion Motion to Dismiss At issue is whether plaintiff obtained personal jurisdiction of defendant Christopher Halvey. Plaintiff contends that service of process was made pursuant to CPLR § 308(4) which states, in part, as follows: where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; ... (CPLR § 308[4])." "Although the ultimate burden of proof regarding personal jurisdiction rests with the plaintiff, to defeat a CPLR § 321 l(a)(8) motion to dismiss a complaint, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the court" (see Weitz v Weitz, 85 AD3d 1153, 1154 [2011 ]; Cornely v Dynamic HVAC Supply, LLC, 44 AD3d 986, 986 [2007])" (Whitcraft v Runyon, 123 AD3d 811, 812; [2 Dept., 2014]). "Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service", but "when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the 3 3 of 6 [*FILED: 4] KINGS COUNTY CLERK 12/24/2019 12:06 PM NYSCEF DOC. NO. 20 INDEX NO. 515554/2018 RECEIVED NYSCEF: 12/24/2019 affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing". (Wells Fargo Bank, NA v Spaulding, 111N.Y.S.3d118 [2 Dept., 2019] [internal citations omitted]). The process server, John Foster states by affidavit that service was completed in accordance with the requirements of CPLR § 308(4) for affix and mail service (see Opposition, Exhibit 1). This gives rise to the presumption that service was properly made on the defendant. To rebut this presumption, the defendant must submit "a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process seryer" (Wells Fargo Bank, NA v Spaulding, 111 N.Y.S.3d 118 [2 Dept., 2019]; quoting Bank ofN.Y Mellon v. Ortiz, 174 A.D.3d 489, 490, 103 N.Y.S.3d 562 [2 Dept., 2019]). "A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit" (JPMorgan Chase Bank, NA. v Grinkorn, 172 A.D.3d 1183 [2 Dept., 2019]; quoting Washington Mut. Bank v. Huggins, 140 A.D.3d 858 [2 Dept., 2016]). "Service of process up·on a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308" (Wells Fargo Bank, NA v Spaulding, 111N.Y.S.3d118 [2 Dept., 2019]; quoting FV-1, Inc. v. Reid, 138 A.D.3d 922 [2 Dept., 2016]). In the case at bar, defendant sufficiently rebutted the presumption that service was properly made. The mailing to the defendant did not bear the legend "personal and confidential" on the front of the envelope. The following was written on the back of the envelope: 4 4 of 6 [*FILED: 5] KINGS COUNTY CLERK 12/24/2019 12:06 PM NYSCEF DOC. NO. 20 INDEX NO. 515554/2018 RECEIVED NYSCEF: 12/24/2019 (see Defendant Supplemental Affirmation, Exhibit A). "[T]he requisite mailing did not bear the legend "personal and confidential" on the envelope as required by the statute (see, CPLR 308 [4]; Pesner v Fried, 166 AD2d 512; Broomes-Simon v Klebanow, 160 AD2d 973). Since the plaintiff failed to comply with the prescribed conditions, personal jurisdiction over the defendant was not acquired, and the complaint should have been dismissed." (Mastropierro v. Bennett, 233 A.D.2d 483, 484, 650 N.Y.S.2d 287 [2 Dept., 1996]; see Broomes-Simon v. Klebanow, 160 A.D.2d 973, 554 N.Y.S.2d 695 [2 Dept., 1990] see generally Hulse v Wirth, 175 A.D.3d 1276, 108 N.Y.S.3d 148 [2 Dept., 2019]). Conclusion Accordingly, defendant's motion to dismiss is granted, in its entirety. The f'.;> ·= -..::- foregoing constitutes the decision and order of this Court. 0 rri n "' .::·· ::i::::-. ::t;:: C::l N ara J. Genovesi ~es\ , r::.V'.no J·S ·C · \,.ara ~ : ::.. ~~. ·- · ~ ; {j ....... 5 5 of 6 I '· I , ; ,--. - ·~ [*FILED: 6] KINGS COUNTY CLERK 12/24/2019 12:06 PM NYSCEF DOC. NO. 20 INDEX NO. 515554/2018 RECEIVED NYSCEF: 12/24/2019 To: Robert Rambadadt, Esq. The Rambadadt Law Office Attorney for Plaintiff 20 W. 20th Street, 2nd Floor New York, New York 10011 John Z. Simon, Esq. James G. Bilello & Associates Attorney for Defendant 875 Merrick Avenue, Westbury, NY 11590 6 6 of 6

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