Opinion
4439/16
02-12-2021
2437 VALENTINE ASSOCIATES, LLC, Plaintiff(s), v. Ana VALVERDE & Carmen Sosa, Defendant(s).
Counsel for plaintiff: Robert E. Judge, PC. Counsel for defendant's estate: CAMBA Legal Services.
Counsel for plaintiff: Robert E. Judge, PC.
Counsel for defendant's estate: CAMBA Legal Services.
Fidel E. Gomez, J.
In this action for breach of a lease, defendant ANA VALVERDE'S (Valverde) motion seeking an order vacating this Court's default judgment entered on October 4, 2016 pursuant to CPLR § 5015(a)(4) for want of personal jurisdiction and dismissing the complaint pursuant to CPLR § 3211(a)(8) for the same reason, is granted after a traverse hearing.
On April 17, 2020, this Court granted Katy Stapleton's (KS) application to substitute herself as Valverde's administratrix because Valverde passed away and KS had been granted letters of administration. However, the although the Court ordered that the caption be amended it Court neglected to list the new caption, which it, sua sponte , does now.
The complaint alleges that in 2012 and 2013, defendants were tenants at the premises owned by plaintiff and located at 2425 Valentine Avenue, No. 7, Bronx, NY. It is further alleged that pursuant to a written lease defendants were required to pay monthly rent at a rate of $1,020.44 per month. The complaint alleges that defendants breached the lease by failing to pay rent from July 2012 through May 2013. Based on the foregoing, plaintiff seeks $11,066.66 in damages, said sum representing rental arrears.
On October 4, 2016, upon plaintiff's motion for a default judgment - premised upon defendants' failure to interpose an answer to the complaint - the Clerk entered judgment in plaintiff's favor in the amount of $14,531.76. On April 17, 2020, upon Valverde's motion to, inter alia , vacate the judgment and dismiss the action for want of personal jurisdiction, this Court granted the motion to the extent of ordering a traverse hearing. On December 14, 2020, this Court denied plaintiff's subsequent application seeking reargument of the decision dated April 17, 2020, adhering to its decision requiring a traverse hearing.
On February 8, 2021, this Court held a traverse hearing.
At the hearing, the parties stipulated to the admission of the following documents into evidence:
First, the affidavit of service executed by Emanuel Lanzot (Lanzot) (Plaintiff's Exhibit 1). Said affidavit states that Valverde was served with the summons and complaint in this action on June 23, 2018, when a copy of the same was left affixed to the door of the premises located at 1428 Bryant Avenue, #1, Bronx NY 10459 (1428), at 9:05am. The affidavit indicates that Lanzot could not find anyone at 1428 on the date in question, nor could he find anyone there on June 22, 2016 at 1:45pm or on June 21, 2016 at 8:35pm. The affidavit also indicates that on June 24, 2016, Lanzot mailed the summons and complaint to Valverde at 1428.
Second, Lanzot's license to serve process in the City of New York (Plaintiff's Exhibit 2). Said license indicates that Lanzot is currently licensed by the Department of Consumer Affairs to serve process in the City of New York until February 28, 2022.
Third, Lanzot's logbook entries for June 21, 2016 through June 23, 2016 (Plaintiff's Exhibit 3). Said logbook entries evince that Lanzot served and/or attempted to serve process on 20 occasions at different locations and in different cases in the span of three days. Per the logbook, on June 21, 2016, at 8:35pm and June 22, 2016 at 1:45pm, Lanzot attempted to serve the summons and complaint upon Valverde at 1428 by conspicuous service. On June 23, 2016, at 9:05am, the logbook evinces that Lanzot served Valverde by conspicuous service, when he left the same affixed to the door. Lanzot describes 1428 as a walk-up, with a white door, and brown wood floors. With respect to June 23, 2016, the logbook indicates that after serving the summons and complaint upon Valverde, Lanzot then served process upon another party in an unrelated matter. Specifically, Lanzot served process at 9:14am, by conspicuous service, at the premises located 2180 Bronx Place East, Bronx New York (2180). Thereafter, at 9:23am, Lanzot served process, by conspicuous service, at 535 Taylor Avenue, Bronx, NY (535).
The record is bereft of a fulsome explanation of the information reflected in the logbook because counsel for the parties failed to elicit much testimony on that subject from Lanzot. It would appear, however, that although the logbook indicates - via a circle around the letter "c" - that service was accomplished during each visit, service was not accomplished until the last portion of the logbook was circled, which in the case of conspicuous service means circling whether process was affixed to the door or slid thereunder.
Fourth, a certificate of mailing (Plaintiff's Exhibit 4). Said certificate indicates that on June 24, 2016, process was mailed to Valverde at 1428.
Fifth, a water bill (Valverde's Exhibit A). Said Bill is dated August 5, 2016, is addressed to KS and is for water services at 1428. A check superimposed on said bill indicates that KS paid the bill on September 2, 2016.
Sixth, four photographs (Valverde's Exhibit B). The photographs depict portions of 1428. The first photograph, a far angle shot, depicts the exterior of 1428, which is a detached house with light colored siding. The front door is up a short flight of steps and the property is separated from the sidewalk by a black iron gate. The second photograph depicts 1428's front door, which is made of wood and painted white. The ground right outside the door appears to be made of grey concrete. The last two photographs depict what appears to be a hallway. The walls are comprised of white and green tiles.
Valverde's final two exhibits, two Google Maps printouts were admitted into evidence over objection to the extent that they indicate the distance between the addresses listed therein (Valverde's Exhibit C). The first indicates that the distance between 1428 and 2180 is three miles and the distance between 2180 and 535 is 3.3 miles.
The Court took judicial notice of a portion of the Google Maps printouts. The Court did not take judicial notice of the driving times between said locations listed in the documents since the traffic conditions then and now likely vary. It is well established that a court can take judicial notice "of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof." ( Carter v Metro N. Assoc. , 255 AD2d 251, 251 [1st Dept 1998] ; Dollas v W.R. Grace and Co. , 225 AD2d 319, 320 [1st Dept 1996] ["A court may only apply judicial notice to matters ‘of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof.’ "]). Here, it is well settled that Google Maps accurately depicts distances and locations of nearly everything in the United States (https://en.wikipedia.org/wiki/Google_Maps ["Google Maps is a web mapping service developed by Google. It offers satellite imagery, aerial photography, street maps, 360 degree interactive panoramic views of streets (Street View), real-time traffic conditions, and route planning for traveling by foot, car, bicycle, air (in beta) and public transportation. In 2020, Google Maps was used by over 1 billion people every month."])
Notably, the Court excluded two court decisions and a consent order from evidence, whose admission Valverde sought. To the extent that Valverde sought to use those documents as proof of prior bad acts sufficient to impeach Lanzot's credibility, this Court disagreed. Indeed, it is settled that all witnesses may be cross-examined about immoral, vicious, or criminal acts which reflect on their character and show them to be unworthy of belief ( Badr v Hogan , 75 NY2d 629, 634 [1990] ; People v Webster , 139 NY 73 [1893] ). However, "[w]hile the nature and extent of such cross-examination is discretionary with the trial court, the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue" ( Badr at 634 [internal citations omitted]; People v Montlake , 184 AD 578, 583 [1918] ). Moreover, extrinsic evidence cannot be used to impeach a witness' credibility because such action would violate the collateral evidence rule ( Badr at 635; People v Pavao , 59 NY2d 282, 288-289 [1983] ; People v Schwartzman , 24 NY2d 241, 245 [1969] ; Crowe v Kelly , 38 AD3d 435, 438 [1st Dept 2007] ). Here, the foregoing documents were excluded from evidence because although - per the two court decisions - Lanzot was found incredible at other traverse hearings, and - per the consent order - failed to report, as required by 6 RCNY 2-236(c)(2), the result of traverse hearings at which he testified - such actions are not akin to moral turpitude so as to warrant their use for impeachment. Indeed, with regard to the former, that another judge found Lanzot incredible cannot mean, as urged, that he intentionally lied. Moreover, admission of those documents into evidence solely for impeachment would violate the collateral evidence rule.
In its case-in-chief, plaintiff elicited testimony from Lanzot, who was also cross-examined by Valverde. Lanzot testified that he was a licensed process sever in the City of New York. At the time of the hearing, he had been a process server for 14 years and was employed by Process Server Plus, Inc. In connection with his license, he was tested to ensure he knew how to serve process and how to keep records of such service. He learned how to keep said records, which included a description of the premises where service was effectuated and the time and date thereof. Upon a review of his records, he recalled that he served Valverde with the summons and complaint in this action and that said service was made after three failed attempts at in-hand personal service. Accordingly, Lanzot resorted to conspicuous service, which per his custom and practice meant affixing the summons and complaint to the door of the respective premise or wedging the same to the edge of the door. When shown pictures of Valverde's home, Lanzot testified that he remembers that to be Valverde's home and that the description of the home in his logbook matched the photographs. With regard to the affidavit of service memorializing the service of the summons and complaint upon Valverde, Lanzot testified that the same was signed by him, but created by his employer. Lanzot's employer created the affidavit of service using the information in Lanzot's logbook. Generally, Lanzot would enter some of the information required in his logbook before he set out to work and serve process. He would then enter the descriptions required by the logbok at the location at which he was serving process. When serving process, Lanzot drove his car. He would double park his car at each location. Lanzot would then approach the premises and knock on a respective door for and wait for two minutes and if service was accomplished, it would take him 10 seconds to memorialize the same in his logbook. On the date that he served the summons and complaint upon Valverde, Lanzot also served process at 2180. Lanzot testified that it took him seven or eight minutes to get from 1428 to 2180 because he knew the Bronx well. He then served process at 535 and it took him 10 minutes to get there from 2180 and complete service.
In her case-in-chief, Valverde elicited testimony from KS and Larry Stapleton (LS), who were both also cross-examined by plaintiff.
KS testified that Valverde was her mother and that KS had lived with Valverde at 1428 since 2001. In 2016, KS's daughter also lived with Valverde at 1428. With regard to 1428, it was a single-family home. To enter 1428 from the sidewalk, one had to enter through a gate, which was always locked. Thereafter, one had to walk to a door, which was also locked and ring the bell. The floor abutting the door was made of cement. In 2016, Valverde was afflicted with ALS, which meant that she could not speak or move and thus, required round-the-clock care. Generally, KS would wake up at 6am and tend to Valverde. She would then leave for work at 8am, when LS, who cared for Valverde all day, got there to be with Valverde. Thereafter, at 9am, Martha, a home attendant would arrive at 1428 to care for Valverde. Martha would leave 1428 at 5pm. Generally, KS got home at 6PM. Thus, by 8pm on June 22, 2016, KS would have been home. The week in question, however, was Regents week. Thus, every day that week, KS would have been home by 3:30pm. Generally, had the doorbell rung, the door would have been answered by KS, Martha, or LS. Because KS was responsible for opening Valverde's mail, Martha and LS would have given her any correspondence left affixed to the door. KS never received the summons and complaint in this action.
LS testified, echoing almost all of KS' testimony. LS added, that in 2016, he lived in the basement at 1428 with his wife and children. In June 2016, LS was substantially unemployed and spent every day caring for his mother, Valverde, who had been afflicted with ALS. Because Valverde had ALS, she couldn't move around and LS had to carry her around. Had he heard the doorbell at 1428 when he was there, he would have opened the door. LS would have given any correspondence for Valverde to KS. LS never received the summons and complaint in this action nor did he see the same affixed to the door of 1428.
Based on the foregoing, crediting KS and LS's testimony, the Court grants Valverde's motion seeking vacatur of the judgment issued upon her default and also dismisses the instant action insofar as this Court never had personal jurisdiction over her.
Standard of Review
It is well settled that "in a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" ( People v McCoy , 100 AD3d 1422, 1422 [4th Dept 2012] ; see Ning Xiang Liu v Al Ming Chen , 133 AD3d 644, 644 [2d Dept 2015] ). Moreover,
[a] judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations ( Gass v Gass , 42 AD3d 393, 401 [1st Dept 2007] ). Absent conclusions that cannot be supported by any fair interpretation of the evidence, a judgment rendered after a bench trial should not be disturbed ( Saperstein v Lewenberg , 11 AD3d 289, 289 [1st Dept 2004] ).
Vacatur of the Judgment
CPLR § 5015(a)(4) authorizes a court to vacate a judgment when the same is obtained despite a "lack of jurisdiction to render the judgment or order" ( CPLR § 5015[a][4] ). The proponent of a motion to vacate a judgment for want of jurisdiction must establish either that the party to whom a judgment was granted failed to obtain personal jurisdiction over him or her ( Toyota Motor Credit Corp. v Hardware Lam , 93 AD3d 713, 713 [2d Dept 2012] ; Hossain v Fab Cab Corp. , 57 AD3d 484, 485 [2d Dept 2008] ), or that the court lacked the requisite subject matter jurisdiction to render judgment ( Lacks v Lacks , 41 NY2d 71, 77 [1976] ; HSBC Bank USA, N.A. v Ashley , 104 AD3d 975, 976 [2d Dept 2013] ).
It is well settled that the burden of establishing personal jurisdiction and proper service rests with the plaintiff ( Frankel v Schilling , 149 AD2d 657, 659 [2d Dept 1989] ; Torres v Corpus , 131 AD2d 463, 464 [2d Dept 1987] ). Generally, an affidavit evidencing proper service upon the defendant is sufficient to support a finding of personal jurisdiction ( Skyline Agency, Inc. v Ambrose Coppotelli, Inc. , 117 AD2d 135, 139 [2d Dept 1986] ). As such, an affidavit of service is prima facie evidence of proper service ( Caba v Rai , 63 AD3d 578, 582-583 [1st Dept 2009] ; NYCTL 1998-1 Trust bank of NY v Rabinowitz , 7 AD3d 459, 460 [1st Dept 2004] [Defendant negated service of process upon him by citing to the affidavit of service and pointing to the deficiencies therein.]; Scarano v Scarano , 63 AD3d 716, 716 [2d Dept 2009] ; Simonds v Grobman , 277 AD2d 369, 370 [2d Dept 2000] ). Accordingly, personal jurisdiction will be upheld without a traverse hearing if the only evidence submitted in opposition is a bare or conclusory denial of service ( Caba at 583 [Sworn denial conclusorily stating that defendant was not served was insufficient to rebut service as evinced by the affidavit of service.]; Simonds at 370; Beneficial Homeowner Service Corp. v Girault , 60 AD3d 984, 984 [2d Dept 2009] ; Rabinowitz at 460; Chemical Bank v Darnley , 300 AD2d 613, 613 [2d Dept 2002] ), or a minor discrepancy, such as a mistake in the description of the recipient listed in the server's affidavit ( Green Point Savings Bank v Clark , 253 AD2d 514, 515 [2d Dept 1998] ). Thus, in order to successfully assail and rebut service so as to warrant a hearing, a defendant's affidavit must specifically rebut the facts in the plaintiff's affidavit of service ( Caba at 683; Simonds at 370). If the denial of service is factually specific, then the court must hold a traverse hearing before deciding whether it has personal jurisdiction over the defendant ( Frankel v Schilling , 149 AD2d 657, 659 [2d Dept 1989] ; Powell v Powell , 114 AD2d 443, 44 [2d Dept 1985] ).
At a traverse hearing, plaintiff bears the burden of establishing service upon the defendant ( Chaudry Const. Corp. v James G. Kalpakis & Assoc. , 60 AD3d 544, 545 [1st Dept 2009] ; Schorr v Persaud , 51 AD3d 519, 519—20 [1st Dept 2008] ). Moreover, at the hearing, the trial court can resolve issues of credibility, such resolution is accorded great deference, and absent a determination that it is against the weight of the evidence, cannot not be disturbed on appeal ( McCray v Petrini , 212 AD2d 676, 676 [2d Dept 1995] ; Avakian v De Los Santos , 183 AD2d 687, 688 [2d Dept 1992] ).
In New York City, all process servers who engage in service of process on five or more occasions must be licensed by the New York City Department of Consumer Affairs ( New York City, NY, Code § 20-404 ). § 20-404(a) defines a process server as a person engaged in the business of serving or one who purports to serve or one who serves personally or by substituted service upon any person, corporation, governmental or political subdivision or agency, a summons, subpoena, notice, citation or other process, directing an appearance or response to a legal action, legal proceeding or administrative proceedings. In addition, New York City, NY, Code § 20-403 imposes a licensing requirement upon process servers and states that "[i]t shall be unlawful for any person to be employed as or perform the services of process server without a license therefor."
General Business Law (GBL) § 89-cc mandates that all process servers keep a record of the process they serve and 22 NYCRR 208.29 mandates that when a process server is called to testify at a traverse hearing he/she is required to bring all records in his/her possession related to service.
The forgoing rules were designed to combat a continuing and pervasive problem of unscrupulous service practices by licensed process servers. These practices deprive defendants of their day in court and lead to fraudulent default judgments. Often associated with consumer debt collection and landlord-tenant litigation, questionable service practices have their greatest impact on those who are poor and least capable of obtaining relief from the consequences of an improperly imposed default judgment. Accordingly, the Department of Consumer Affairs must depend on the accurate record-keeping practices of its licensees as a means of monitoring the industry and uncovering wrongful practices. Petitioner's repeated disregard for the strictures of the agency's record-keeping provisions was a direct violation of the terms of his license and, further, was antithetical to the regulatory goal of assuring honest service practices ( Barr v Dept. of Consumer Affairs of City of New York , 70 NY2d 821, 822-823 [1987] ). Accordingly, trial courts have routinely declined to credit a process server's testimony regarding service when the witness fails to keep records in accordance with the statutory requirements ( Barr at 822-823), fails to bring all papers - such as his logbook - related to the service at issue to a traverse hearing ( First Commercial Bank of Memphis, N.A. v Ndiaye , 189 Misc 2d 523, 526 [Sup Ct 2001] ; Masaryk Towers Corp. v Vance , 12 Misc 3d 1172(A), *9 [Civ Ct 2006] ; Borges v Entra Am., Inc. , 7 Misc 3d 1032(A) [Civ Ct 2005] ), or fails to demonstrate that he was properly licensed ( Borges at *6).
The rationale underpinning the decision not to credit a process server who fails to comply with the statutory record keeping requirement is simply one of memory - which is lost over time. It is a recognition that memory fades with time and as such, reliance upon proper records is paramount. This is particularly true of process servers who normally engage in the service of many items in their day to day employment and for whom there exist many months between service and being called upon to testify regarding a particular instance of service ( Masaryk at *9). Accordingly, proper record keeping is essential to ensure accuracy ( id. ). In First Commercial of Memphis , the court stated that
[m]any months passed between the time of alleged service and the traverse hearing. The unaided memory of the process server, who may have served hundreds of people in the interim, is unreliable. The plaintiff has the burden of proving jurisdiction by a preponderance of credible evidence. In this case, the plaintiff has not met this burden in producing a process server whose records do not conform with statutory requirements ( id. at 526).
Pursuant to 22 NYCRR 208.1(b), the court can waive compliance with any of the Uniform Rules for the New York State Trial Courts when good cause is shown. However, to the extent that there exists strong public policy to support the rules and regulations governing service of process, strict compliance with said rules is required. As such, the court shall not waive the documentary requirements imposed upon process servers by 22 NYCRR 208.29 ( Inter-Ocean Realty Assoc. v JSA Realty Corp. , 152 Misc 2d 901, 903 [Civ Ct 1991] [Court declined to credit process server's testimony when he failed to bring his logbook to the traverse hearing. Court concluded that his excuse for failure to bring logbook, namely, that it had been stolen, was unsubstantiated with corroborating evidence.]).
Here, upon consideration of all the evidence offered at the traverse hearing, the Court finds that plaintiff failed to establish that defendant was served with the summons and complaint in this action such that the judgment entered on October 4, 2016 must be vacated pursuant to CPLR § 5015(a)(4). Significantly, at a traverse hearing, the plaintiff bears the burden of establishing service upon the defendant ( Chaudry Const. Corp. at 545; Schorr at 519—20) and at the hearing, the trial is tasked with resolving issues of credibility, such resolution is accorded great deference, which absent a determination that such resolution is against the weight of the evidence, cannot be disturbed on appeal ( McCray at 676; Avakian at 688).
In this case, Lanzot, plaintiff's only witness, was simply not credible. Significantly, while Lanzot produced all of the records required by the applicable rules necessary to demonstrate service - namely, his license and his logbook - the records themselves - the sole basis of his testimony at the hearing - raised questions on the issue of service upon Valverde. First, while Lanzot testified that the description of 1428 listed in his logbook matched the depiction of 1428 in Valverde's photographs, this is simply not true. To be sure, Lanzot's logbook describes the floor abutting 1428's front door as brown and made of wood, while the photographs depict that same floor as made of cement and grey in color. This, by itself, casts doubt as to whether Lanzot ever made it beyond the gate at 1428 as he testified and as his records indicate. Second, and perhaps most problematic for plaintiff was Lanzot's testimony regarding the time it took him to get to the locations at which he effectuated service after 1428, the times in his logbook indicating his service of process after leaving 1428, Lanzots's testimony regarding how he served process, and Valverde's Google Maps printouts. Significantly, Valverde testified that before resorting to conspicuous service or leaving a particular location, he knocked on the door and waited two minutes. Thereafter, Lanzo testified that it then took him 10 seconds to fill out his logbook. Despite the foregoing he testified that it took him only seven to eight minutes to get to 2180, which per the Google Maps printouts was three miles away. This means that Lanzot would have been able to drive three miles, in New York City, in only seven to eight minutes. The logbook entries support Lanzot's testimony on this issue in that they indicate that he served process at 2180 nine minutes after leaving 1428 and at 535 nine minutes after leaving 2180. The foregoing is simply incredible, hard to fathom and casts serious doubt as to whether Lanzot was testifying credibly and whether he, in fact, served process at the times and locations alleged.
The incredulity of Lanzot's testimony and his records, are by themselves fatal to plaintiff's burden. However, the Court notes that it simply believed both KS and LS' testimony on the issue of service, which belied any allegation, testimony or evidence that Valverde was served with the summons and complaint in this action. The essence of the testimony proffered by the foregoing witnesses, which the Court credits, is that there would have been someone home on all occasions on which Lanzot attempted service such that someone would have answered the door thereby precluding conspicuous service. Because Valverde was afflicted with ALS, during the week of June 21, 2016, Valverde would have been unable to access any documents served at 1428. Moreover, both LS and Martha would have been at 1428 when Lanzot attempted service on June 22, 2016 at 1:45pm and when he allegedly served the summons and complaint by leaving a copy affixed to the door of 1428 on June 23, 2016 at 9:05am. Similarly, KS herself would have been home when service was attempted at 8:05pm on June 21, 2016.
Notably, because KS testified that access to the front door at 1428 required entry through a gate that was kept locked, which the Court credits, it is hard to fathom how Lanzot was able to even get to the front door. This further belies Lanzot's assertion of service.
Dismissal of the Complaint
It is well settled that a motion to dismiss for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8) will be granted when it is established that service of process upon a defendant was improper ( Feinstein v Bergner , 48 NY2d 234, 234-235 [1979] [Court dismissed complaint for lack of personal jurisdiction when defendant was served with process by nail and mail service at an address where defendant no longer resided.]; West v Doctor's Hospital , 198 AD2d 92, 92 [1st Dept 1993] [Court granted motion to dismiss for want of personal jurisdiction, holding that service was improper when summons and complaint were left with someone on the 14th floor, rather than the 8th floor - the floor where defendant maintained his office.]; O'Connell v Post , 27 AD3d 630, 630-631[2d Dept 2006] [Court granted motion to dismiss for lack of personal jurisdiction holding that service was improper when plaintiff resorted to nail and mail service without attempting to serve defendant at his place of business]), or where the evidence establishes that defendant was never served at all ( Cooper v Bao Thao , 162 AD3d 980, 981 [2d Dept 2018] ["Furthermore, insofar as the plaintiff acknowledges that Thao was never served with process, that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Thao for lack of personal jurisdiction was properly granted" (internal citations omitted).]; DeCurzio v T.S.S. Seedman's Inc. , 115 AD2d 585 [2d Dept 1985] ["Since plaintiff has never claimed to have effected service upon or acquired personal jurisdiction over defendant DiMasi, the complaint insofar as it is asserted against him should have been dismissed."]).
The burden of establishing personal jurisdiction and proper service rests with the plaintiff ( Frankel at 659; Torres at 464). Thus, at a traverse hearing, plaintiff bears the burden of establishing service upon the defendant ( Chaudry Const. Corp. at 545; Schorr at 519—520).
Here, the very same reason warranting vacatur of the judgment entered against Valverde - plaintiff's failure to demonstrate service of the summons and complaint upon her - warrants dismissal of the complaint pursuant to CPLR § 3211(a)(8). It is hereby
ORDERED that this Court's judgment, entered on October 4, 2016 be vacated as against Valverde. It is further
ORDERED that the complaint be dismissed, without prejudice, as against Valverde. It is further
ORDERED that any restraining notices or income executions, as against Valverde, be vacated forthwith. It is further
ORDERED that the caption in this action be amended as follows:
x
2437 VALENTINE ASSOCIATES, Plaintiff(s),
against
KATY STAPLETON, AS ADMINISTRATRIX OF THE ESTATE OF ANA VALVERDE, DECEASED and CARMEN SOSA, Defendant(s).
x
It is further
ORDERED that Valverde serve a copy of this Order with Notice of Entry upon plaintiff within thirty (30) days hereof.
This constitutes this Court's decision and Order.