Opinion
No. 05 Civ. 593 (LAK) (MHD).
June 9, 2005
Isaac Klepfish, Esq., New York, New York, Assistant Corporation Counsel for the City of New York.
MEMORANDUM ORDER
Plaintiff filed this pro se lawsuit on January 14, 2005. He names as defendants the City of New York, the Department of Sanitation and a variety of senior City officials.
By letter dated June 3, 2005 an attorney from the New York City Law Department asserts that "the purported service of process in this case was invalid and . . . to date none of the named defendants has been served with the summons." (June 3, 2005 letter to the Court from Assistant Corporation Counsel Isaac Klepfish). The Assistant Corporation Counsel then goes on to say that since the defendants have not been served, "this office is not appearing on behalf of the defendants", but he then proceeds to offer his version of the facts concerning service (or non-service) and requests that the complaint be dismissed as against the City, the Department of Sanitation, Police Commissioner Kelly and Deputy Police Commissioner George Grasso. He also reports a conversation that he had with another defendant (Joseph DiPiazza), purportedly suggesting that service on both Mr. DiPiazza and co-defendant Ellen Doubrawski was incomplete. Finally, counsel claims that the court file does not contain executed returns of service despite a notation on the docket sheet to the contrary.
Sparked by this correspondence, we have reviewed the file of the case, and indeed it does contain executed returns of service for all of the defendants except the City itself, with service having purportedly been made by a Charles Castro on May 11, 2005 (except for Ms. Doubrawski, who was served on May 12, 2005). Whether the representations made in these returns are truthful and accurate we of course cannot tell from the face of the documents, but until and unless the defendants appear and challenge service, there is no basis for refusing to accord these filed documents presumptive validity.
As matters now stand, defendants appear to be in default, and unless they appear within the next seven days, we will invite plaintiff to move for entry of defaults against them. We respect the decision of the Law Department not to appear at this stage on their behalf, but defendants maintain that posture at their peril.
We do note, however, that counsel's request for dismissal appears at least potentially inconsistent with his insistence that his letter is not an appearance, at least for the limited purpose of contesting service and perhaps thereby jurisdiction.