Opinion
6196/2006.
Decided July 14, 2008.
William J. Rita, Esq., New York, New York, For plaintiff.
Dale J. Degenshein, Esq., Stroock Stroock Lavan LLP, New York, New York, For defendant.
Upon defendant's order to show cause signed May 2, 2008, the affirmation of Dale J. Degenshein, Esq. dated May 1, 2008, the affidavit of Ira Meister sworn to April 28, 2008 and the exhibits annexed thereto; the affirmation in opposition of William J. Rita, Esq. dated June 10, 2008 and the exhibits annexed thereto; the reply affirmation of Dale J. Degenshein, Esq. dated June 24, 2008; and due deliberation; the court finds:
Defendant corporation seeks to vacate the default judgment against it and the subsequent monetary judgment obtained by plaintiff after inquest conducted February 25, 2008, on the basis that it has never been served with process. Defendant also seeks to have the complaint dismissed, as the statute of limitations for this personal injury action stemming from an October 16, 2003 incident has expired.
Plaintiff relied on a 2005 title report for the address at which he purportedly served defendant, 17 East 49th Street, New York, New York. This address, according to the title report, is taken from the 1970 deed which transferred ownership of the subject premises to defendant. The address clearly indicates that it is in "care of" another entity or person named "McLaughlin." The full name of the entity, from the actual deed itself, which this court has viewed on its own initiative, is "McLaughlin, Fougner Messing."
The affidavit of Ira Meister, president of defendant's managing agent, avers that defendant's address is and always has been 118 East 60th Street, New York, New York, and that neither defendant nor the managing agent were located at 17 East 49th Street on February 2, 2006, when the purported service was effectuated. Mr. Meister further avers that he did not become aware of the action against defendant until he received a copy of the final judgment in the mail, which plaintiff had sent to defendant at its address listed with the Department of State, which is 118 East 60th Street, New York, New York. Defendant submits as an exhibit the envelope in which the final judgment was mailed, which bore exactly the same address and designation as that listed as the "DOS Process" address on the Department of State's corporate database website. Under these circumstances, it was not reasonable for plaintiff to rely on twenty-six year old information for an accurate address for service of process. See, e.g., Bevona v. Blue Star Realty Corp., 264 AD2d 586, 694 NYS2d 656 (1st Dep't 1999).
Furthermore, plaintiff failed to serve defendant corporation in conformity with CPLR 311, which governs service upon corporations and governmental subdivisions. This section states that service may be made only by service upon the Secretary of State as provided for in Business Corporation Law § 306, or by personal service "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service."
Plaintiff's affidavit of service indicates that the summons and complaint were left with an unnamed security guard at 17 East 49th Street as a "suitable age person," and makes no indication that the relevant inquiries were made regarding whether this person was authorized to accept service on behalf of defendant. See Global Connect Strategic Voice of Broadcasting, Corp. v. Oxford Collection Agency, Inc. , 50 AD3d 737 , 856 NYS2d 635 (2d Dep't 2008); cf. Central Savannah River Area Resource Dev. Agency v. White Eagle Intl., Inc., 1985 NY App. Div. LEXIS 43765 (2d Dep't March 14, 1985). Plaintiff's opposition to the motion does not dispute that an unnamed "person of suitable age and discretion" was served with process.
Ordinarily, "[w]hile a proper affidavit of a process server attesting to personal delivery upon a defendant constitutes prima facie evidence of proper service, a sworn non-conclusory denial of service by a defendant is sufficient to dispute the veracity or content of the affidavit, requiring a traverse hearing." NYCTL 1998-1 Trust v. Rabinowitz , 7 AD3d 459 , 460, 777 NYS2d 483, 484 (1st Dep't 2004) (citations omitted). Where, as here, however, the deficiency of the manner of service is apparent on the face of the affidavit of service, no traverse hearing is necessary to make the determinations herein. See Weinberg v. Hillbrae Builders, Inc., 58 AD2d 546, 396 NYS2d 9 (1st Dep't 1977). Plaintiff could easily have availed himself of defendant's address, and it appears that he chose not to do so. See H.K.A. Realty Co. v. United Steel Strip Corp., 88 AD2d 612, 449 NYS2d 1017 (2d Dep't 1982); see also Brac Constr. Corp. v. Di-Com Corp., 51 AD2d 740, 379 NYS2d 483 (2d Dep't 1976). The default should therefore be vacated.
Furthermore, where a plaintiff has failed to properly serve the defendants, all subsequent proceedings are "null and void." Ananda Capital Partners, Inc. v. Stav Elec. Sys. (1994) Ltd., 301 AD2d 430, 430, 753 NYS2d 488, 489 (1st Dep't 2003). Plaintiff never having acquired jurisdiction over the defendant, and the statute of limitations having expired, plaintiff's complaint should therefore be dismissed. See Cadlerock Joint Venture, L.P. v. Uddin, 303 AD2d 188, 755 NYS2d 597 (1st Dep't 2003); Haberman v. Simon, 303 AD2d 181, 755 NYS2d 596 (1st Dep't 2003); Security Pac. Natl. Trust v. Chunassamy, 289 AD2d 151, 734 NYS2d 438 (1st Dep't 2001).
Accordingly, it is
ORDERED, that the order of the Hon. Patricia Anne Williams dated January 5, 2007 granting plaintiff a default judgment over defendant is vacated in its entirety; and it is further
ORDERED, that the decision of the undersigned dated February 26, 2008, which granted plaintiff judgment against the defendant after inquest, is vacated in its entirety; and it is further
ORDERED, that plaintiff's complaint is dismissed in its entirety with prejudice; and it is further
ORDERED, that the clerk of the court shall enter judgment in favor of defendant dismissing the complaint.
This constitutes the decision and order of the court.