Delucie v Largotta

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Delucie v Largotta 2020 NY Slip Op 34144(U) December 10, 2020 Supreme Court, New York County Docket Number: 655118/2019 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: 1] NEW YORK COUNTY CLERK 12/10/2020 03:44 PM INDEX NO. 655118/2019 .". NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/10/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: lAS MOTION 59EFM PART HON. DEBRA A. JAMES Justice --------------------------------------------------------------------------- X INDEX NO. JOHN DELUCIE, 655118/2019 MOTION DATE Plaintiff, 03/10/2020 MOTION SEQ. NO. 001 - vSEAN LARGOn DECISION + ORDER ON MOTION A, Defendant. ______________________________________________________ ---------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 2,3,4,5,6,7,8,9 were read on this motion to/for EXTEND - TIME ORDER Upon the foregoing ORDERED extension that the motion service ORDERED and complaint of plaintiff is granted, that plaintiff upon Jeffrey within ORDERED for an and for and it is further Strauss, shall serve the summons counsel for defendant (45) days of service Sean of a copy of of entry, and it is further that Jeffrey to accept John DeLucie and complaint John DeLucie forty-five this order with notice directed it is of time to serve the summons alternative Lagrotta, documents, service Strauss, defendant's on behalf counsel, of Sean Lagrottai is and it is further 655118/2019 DELUCIE, JOHN vs. LARGOTTA, Motion No. 001 Page 1 of 5 SEAN 1 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 12/10/2020 03:44 PM INDEX NO. 655118/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/10/2020 ORDERED service, that within defendant and it is further that counsel 59nyef@nycourts.gov order or competing March (45) days after such shall answer or otherwl'se move wlt ' h respect to the complaint, ORDERED forty-five are directed and NYSCEF proposed to submit a proposed preliminary to preliminary conference conference order on 15, 2021. DECISION In motion moves, sequence pursuant to: 001, plaintiff by alternative In this action, venture DeLucie, were partners were managed Delucie in closure Department certain Lagrotta, by Lagrotta. 655118/2019 DELUCIE, JOHN Motion No. 001 VS. arising (2) and and non-party of several Mark Thomas restaurants, DeLucie Arnadei which alleges of the restaurants and subjected employees from a failed in New York City, In his complaint, of the restaurants of Taxation and of the summons restaurants severe mismanagement by restaurant service seeks damages in the ownership that Lagrotta's (Complaint), the means. to own and manage New York. lawsuits and complaint (5), for an order directing Complaint (DeLucie) (1) CPLR 306-b, for an order extending time to serve the summons CPLR 308 John DeLucie the owners resulted to and the New York State and Finance. LARGOTTA, Page 2 of 5 SEAN 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 12/10/2020 03:44 PM NYSCEF •. DOC. NO. 11 RECEIVED NYSCEF: 12/10/2020 It is undisputed and Complaint Doc. No. failed to serve his summons the proscribed 120-day time frame M. Schneider an attorney (Schneider), affirmation using traditional identify Schneider made multiple of employment, informed the Gansevoort that Lagrotta despite confirming service (id. at Ij[14). Lagrotta because number attempts the efforts the address to serve Lagrotta any prejudice but Lagrotta's pursuant (id. at.1j[15, NYSCEF to CPLR 308/(4) employment apparent DeLucie is also impracticable is a world-renowned absence unwillingness to CPLR 308 6, 7). server sought by DeLucie. effectuate and his employer's to at his place that would that DeLucie has made diligent service failed was or in London, record demonstrates jurisdiction last the same day prior to attempting of the extension service, Schneider (id. at Ij[13). Next, was either unavailable his presence to serve at Lagrotta's Hotel, but the process fails to identify from the granting for DeLucie, (id. at Ij[Ij[ 11-14). of service was unsuccessful a floor or apartment counsel detailing methods that the first attempt known address rendered (NYSCEF [NYSCEF] 3, 17) Lagrotta affirms that DeLucie within Douglas submits INDEX NO. 655118/2019 (1) and contends result The attempts to from the to cooperate have (2) impracticable service as Lagrotta's pursuant "place of hotel and there is no way to Page 3 of5 655118/2019 DELUCIE, JOHN VS. LARGOTTA, SEAN Motion No. 001 3 of 5 [*FILED: 4] '.. NEW YORK COUNTY CLERK 12/10/2020 03:44 PM .. INDEX NO. 655118/2019 .;' ~ .. NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/10/2020 affix the summons and [C]omplaint to a door at the facility" (NYSCEF 3, ~ 16).' In opposition, counsel for Lagrotta, (Strauss) affirms in his affirmation to accept on Lagrotta's service of the motion "A showing CPLR 308" outlined pursuant [internal citation under 308 with the discretion for service of process set forth in CPLR 308 (Born To Build, [internal citations to serve a party "Under CPLR 308 (4) are 139 AD3d omitted]). (4) of [1st Dept (5), a court to direct an alternative (1), (2), and under (1), (2) or when it has determined LLC v Saleh, and Complaint (5) does not 189 AD2d 717, 717, omitted]). the portion (NYSCEF 9, ~~ 3-4). to Subdivisions (Franklin v. Winard, is vested and opposes of his client, Lagrotta proof of actual prior attempts the methods 1993] behalf of impracticability T. Strauss that he was not authorized at bar seeking to serve the summons on him on behalf require Jeffrey method that the methods 'impracticable'" 654, 655 [2d Dept 2016] The court may extend the , deadline to serve the summons demonstrated or if it would Strauss behalf correctly of service deemed of process if good cause serve the interest argues that he cannot of his client unless not automatically and Complaint authorized accept However, (id.). service on to do so and that he is an agent of Lagrotta (id.). of justice is DeLucie for the purposes has established Page 4 of5 655118/2019 DELUCIE, JOHN vs. LARGOTTA, SEAN Motion No. 001 4 of 5 [*FILED: 5] " . NEW YORK COUNTY CLERK 12/10/2020 03:44 PM A INDEX NO. 655118/2019 • NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/10/2020 that service having otherwise attempted upon Lagrotta to serve at Lagrotta and place of employment, address would be impracticable, in London of international at his last known address coupled with the fact that Lagrotta's is unknown, service effectively (Kelly v Lewis, preventing, an attempt 220 AD2d 485, 486 [1st ,I Dept 1995] [court concluded service was impracticable plaintiff made multiple defendant at last known address]). to assert any prejudice service on behalf to apprise attempts days to serve Furthermore, Strauss fails that would arise from his acceptance of Lagrotta Lagrotta on different after or that such service of the instant action or of is inadequate (Born v Saleh, 139 AD3d at 655). Consequently, DeLucie an extension on Lagrotta service this court, of time to serve the summons pursuant on behalf in its discretion, to CPLR 306~b and direct of Lagrotta pursuant CHECK ONE: ~ CASE DISPOSED X GRANTED and Complaint Straus~ to CPLR 308 ---, ~ shall grant (5). 1 j'l ..e.d:::!. J ~ DEBRA A. JAMES, NON.FINAL DISPOSITION D GRANTED IN PART DENIED SUBMIT ORDER APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ to accept FIDUCIARY APPOINTMENT cd J.S.C. D D OTHER REFERENCE Page 50f 5 655118/2019 DELUCIE, JOHN VB. LARGOTTA, SEAN Motion No. 001 5 of 5

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