Opinion
614186/2018
10-02-2019
Angelo Leone, Plaintiff, v. David A. Jackson, Defendant.
GEORGE T. OSTROWSKI JR. Attorney for Plaintiff 999-32 Montauk Highway, Suite 605 Shirley, NY 11967 KELLY, RODE & KELLY, LLP Attorneys for Defendant 330 Old Country Road, Suite 305 Mineola, NY 11501
GEORGE T. OSTROWSKI JR. Attorney for Plaintiff 999-32 Montauk Highway, Suite 605 Shirley, NY 11967 KELLY, RODE & KELLY, LLP Attorneys for Defendant 330 Old Country Road, Suite 305 Mineola, NY 11501 Robert F. Quinlan, J.
Upon the following papers read on this motion for an order dismissing the complaint for lack of personal jurisdiction; Notice of Motion/ Order to Show Cause and supporting papers (Doc #5-11); Affirmation in Opposition and supporting documents (Doc #16-18); Affirmation in Reply (Doc #21); it is,
ORDERED that defendant David A. Jackson's application to dismiss the complaint for lack of personal jurisdiction is denied; and it is further
ORDERED that attorneys for the parties are directed to appear in the courthouse located at One Court Street, Riverhead, in the Differentiated Case Management Part, for a preliminary conference on November 7, 2019 at 9:30 A.M. (see 22 NYCRR § 202.12).
This is an action for personal injuries allegedly sustained by plaintiff, Angelo Leone, as a result of a motor vehicle accident that occurred on July 26, 2015. The action was commenced by filing of the summons and complaint on July 23, 2018 via New York State Courts Electronic Filing system (Doc #1). Defendant David A. Jackson appearing by counsel, filed an answer on December 17, 2018 (Doc #3).
As an initial matter the court addresses plaintiff's argument that defendant's motion is untimely pursuant to CPLR 3211(e) which requires an answering defendant who has raised lack of jurisdiction based on improper service to move for judgment within sixty days after service of the answer. In support of this argument plaintiff's counsel argues that defendant 'made' his motion on February 28, 2019, the date of filing of his amended notice of motion, and the motion is therefore untimely. However a review of the electronically filed records indicate defendant filed his answer December 17, 2018 (Doc #3) and filed his notice of motion and supporting documents on February 8, 2019 (Doc #5-11), within the 60 day limit, albeit with an error in his notice of motion, setting forth the return date as March 8, 2018 (which had obviously passed) instead of March 8, 2019. Thereafter defendant filed an amended notice of motion on February 28, 2019 to correct the error.
CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced (see Matter of Tagliaferri v. Weiler, 1 NY3d 605 [2004]; Avalon Gardens Rehabilitation & Health Care Ctr., LLC v. Morsello, 97 AD3d 611 [2d Dept 2012]). Under these circumstances, where there was an obvious clerical mistake which defendant's counsel corrected, and counsel for both parties stipulated to adjourn the return date (Doc #15), plaintiff is not prejudiced and the court disregard's defendant's mistake.
The court turns next to that part of defendant's motion dismissing the action for lack of personal jurisdiction. According to the affidavit of service of Cliff Schneiderman filed September 5, 2018 (Doc #2), defendant was served with process on August 6, 2018 by delivery to "Nat Turner, security Guard (Front Entrance)" at 23 Hyacinth Court, Melville, Suffolk County and by mailing a copy of the summons and complaint to defendant at 23 Hyacinth Court, Melville, by first class mail. The "comments" by the process set forth in his affidavit of service state:
Person served (Front Entrance Guard) called the defendant and explained to the defendant that I had legal papers with reference to a motor vehicle accident [defendant] was involved in and that [defendant] simply had to forward the papers to his insurance company. With that he would not allow me access.
In support of his motion defendant submits his affidavit in which he avers he was never served in person with any court documents. Defendant also avers that the affidavit of service states "court documents were served on the security guard of my apartment building" who allegedly called when he received service but defendant was never notified of service by his security guard and never received the alleged documents that were served. Defendant also states he never received an envelope in the mail bearing the legend "personal and confidential." Defendant also avers he has never seen the summons and complaint for this action and first became aware of the action when his attorney, appointed by his automobile insurance company, called him on December 10, 2018. Further defendant avers that he no longer resides at 23 Hyacinth Court, Melville.
A process server's affidavit of service constitutes prima facie evidence of proper service (see Rolling Acres Developers, LLC v Montinat, 166 AD3d 696 [2d Dept 2018]; Mizerek v Rosenfeld, 162 AD3d 1005, [2d Dept 2018]). Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits (Nationstar Mtge., LLC v Dekom, 161 AD3d 995 [2d Dept 2018].
Here the process server's affidavits constituted prima facie evidence that defendant was properly served pursuant to CPLR 308(2). Though it is unclear from the submissions whether the security guard was in the lobby of an apartment building or at the gate of a community, it is of no moment as the Court of Appeals has held that if the doorman of an apartment building bars access to the defendant's apartment, the lobby marks the "outer boundary" of the defendant's dwelling place, and delivery may be made to the doorman, who is deemed a person of suitable age and discretion (see F.I. duPont, Glore Forgan & Co. v. Chen, 41 NY2d 794 [1977] ). The same rationale has been used to uphold delivery to the security guard at the gateway to a residential housing community (Costine v. St. Vincent's Hosp. & Medical Center of New York, 173 AD2d 422 [1st Dept 1991]). Moreover defendant's argument that service was defective because the process server did not state on what date he mailed a copy of the summons and complaint to defendant was refuted by the affidavit of the process server, submitted in opposition, in which the process server stated that he usually completes the mailing the same day he serves the paper and in this instance he mailed the summons and complaint on the same date he served the papers therefore the date of his affidavit, August 6, 2018, is the date he both served, and mailed, the summons and complaint. Equally unavailing is defendant's argument that the mailing was defective because the envelope was not marked "personal and confidential" since that language is not required where, as here, the mailing is made to the defendant's last known residence (see Ridgeway v St. John's Queens Hosp., 199 AD2d 490 [2d Dep't 1993]; Bezoza v Bezoza, 83 AD3d 578 [1st Dept 2011]). Though defendant denies receiving an envelope containing a copy of the summons and complaint marked "personal and confidential," which language is not statutorily required, defendant does not deny receiving the summons and complaint by regular first class mail nor does he establish that he resided elsewhere on the date of service or that Nat Turner, the security guard served with the summons and complaint, was not present at the location or that the affidavit does not match his physical description. Defendant's bare and unsubstantiated denials of service are insufficient to rebut the presumption of proper service (see Rabinowitz v Rabinowitz, 137 AD3d 884 [2d Dept 2016]; Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2d Dept 2014]; U.S. Bank National Assoc. v Aorta, — AD3d —, NY Slip Op 07106 [2d Dept 2019]).
Finally defendant's argument that he was not timely served with the summons and complaint is without merit. An action is commenced by filing of a summons and complaint (CPLR 304) and service must be effected within 120 days after commencement of the action (CPLR 306-b). Here the accident occurred July 26, 2015, plaintiff filed his summons and complaint July 23, 2018, within the three year statute of limitations (CPLR 214) and although service and mailing (CPLR 308[2]) were complete after the statute of limitations expired service was complete within 120 days after commencement of the action. Where service of process on a defendant is complete after a statute of limitations has expired it does not render plaintiff's action time-barred, instead the service relates back to the filing and is timely (see Tucker v Leak, 268 AD2d 320 [1st Dept 2000]; Siegel, NY Prac. §72 [5th ed. 2011]).
Accordingly defendant's motion is denied.
The foregoing constitutes the decision and Order of this Court. Dated: October 2, 2019 Hon. Robert F. Quinlan, J.S.C.