Visualhouse USA, LLC v Soho Thompson Realty LLC

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Visualhouse USA, LLC v Soho Thompson Realty LLC 2023 NY Slip Op 34002(U) November 9, 2023 Supreme Court, New York County Docket Number: Index No. 655881/2020 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. INDEX NO. 655881/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/09/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES 59 Justice ----------------------------------------------------------------- ----------------X VISUALHOUSE USA, LLC, 655881/2020 INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 06/02/2021 001 002 - V - ORDER - RESETTLED AMENDED (MOTION RELATED) SOHO THOMPSON REAL TY LLC, Defendant. ------------------------------------------------------------------- --------------X SOHO THOMPSON REAL TY LLC, Third-Party Index No. 596075/2020 Third-Party Plaintiff, -againstROBERT HERRICK, Third-Party Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 18, 19, 37 were read on this motion to/for DISMISSAL The following e-filed documents, listed by NYSCEF document number (Motion 002) 20, 21, 22, 23, 25, 26,27,28,29, 30, 31, 32, 33, 34, 35, 36, 38 were read on this motion to/for DISMISSAL ORDER Upon the foregoing documents, it is ORDERED that the Order of November 3, 2023, resolving motion sequence 001 and 002 in this action is VACATED, CORRECTED pursuant to CPLR § 5019 (a) RESETTLED, [see Kiker v Nassau County, 85 NY2d 879 (1995)] as follows: 655881/2020 VISUALHOUSE USA, LLC vs. SOHO THOMPSON REAL TY LLC Motion No. 001 002 [* 1] 1 of 4 AND Page 1 of4 INDEX NO. 655881/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/09/2023 ORDERED that the motion pursuant to CPLR 3211 (a) (8) of the third-party defendant ROBERT M. HERRICK to dismiss the third-party complaint for number 001) lack of personal jurisdiction (motion sequence is denied as premature; and it is further ORDERED that the motion of the third-party defendant ROBERT M. HERRICK to dismiss the third-party complaint personal jurisdiction (motion sequence number 002) for lack of is denied; and it is further ORDERED that the cross-motion of the defendant/third partyplaintiff SOHO THOMPSON REALTY LLC for an extension of time for service or directing service upon third-party defendant ROBERT M. HERRICK, is denied, as moot; and it is further ORDERED that third-party defendant ROBERT M. HERRICK shall serve and file an answer to the third-party complaint within twenty (20) days of service of a copy of this order with notice of entry; and it is further ORDERED that counsel are directed to post on NYSCEF a proposed preliminary discovery conference order or competing proposed preliminary discovery conference order(s) at least two days before December 19, 2023, on which date counsel shall appear via Microsoft Teams, unless such appearance be waived by the court. DECISION The motion ("Herrick") to of third-party dismiss the defendant third-party 655881/2020 VISUALHOUSE USA, LLC vs. SOHO THOMPSON REAL TY LLC Motion No. 001 002 [* 2] 2 of 4 ROBERT complaint M. for HERRICK lack Page 2 of 4 of INDEX NO. 655881/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/09/2023 personal jurisdiction over him on the basis that he does not live or reside at the location of purported service number 001) prior is denied. the to (motion sequence Such motion is premature as it was filed expiration of the 120-day period for the defendant/third party-plaintiff SOHO THOMPSON REALTY LLC ("Soho") to effect and file proof of service pursuant to CPLR 306-b (Martin v Witkowski, 158 AD3d 131, 140-140 [4th Dept 2017]). Herrick's second motion to dismiss the complaint for lack of personal jurisdiction on the grounds that the process server failed to exercise due diligence, as required under CPLR 308(4) prior to utilizing the "nail and mail" method of service, shall also denied. process "[A constitute [ s] server's] affidavit of service. prima facie evidence of proper service" ( see Reem Contracting v Altschul & Altschul, 117 Ad3d 583 [1st Dept 2014]). In support specific of facts his to motion, rebut Herrick the submits affidavit relying solely on an attorney affirmation. of no the affidavit process with server, In light of Herrick's failure to come forward with evidence that rebuts the affidavit of the process server, the process server's statement under oath that he made three attempts to serve Herrick, on different days and different times, including a Saturday, satisfies the due diligence requirement of CPLR 308(4) Nat. (NYSCEF Doc. No. 17; see Deutsche Bank Tr. Co. v. White, 110 AD3d 759, 760 [2d Dept 2013]). On that same basis, no traverse hearing is required to determine if Herrick 655881/2020 VISUALHOUSE USA, LLC vs. SOHO THOMPSON REAL TY LLC Motion No. 001 002 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 655881/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/09/2023 was properly served, Herrick having failed to raise an issue fact with respect to the presumption of service (Deutsche, supra.) Finally, the cross-motion of Soho to extend the time to effectuate service upon Herrick is dismissed as moot, as, for the foregoing reasons, Soho has effectuated proper service upon Herrick. , ~ fl - } ~ 20231109115524DJAMESECB76E543EC344D3957714F3F6F33314 11/9/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: DEBRA A. JAMES, J.S.C. ~ CASE DISPOSED GRANTED DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 655881/2020 VISUALHOUSE USA, LLC vs. SOHO THOMPSON REALTY LLC Motion No. 001 002 [* 4] 4 of 4 OTHER REFERENCE Page4 of 4

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