Opinion
07159/2012
05-02-2013
Todd Powell, Plaintiff(s) v. David Fink, Defendant(s).
David V. Falkner, Esq David Fink, Esq. Defendant, Pro se
David V. Falkner, Esq
David Fink, Esq. Defendant, Pro se
Andrew G. Tarantino Jr., J.
NATURE OF THE CASE
Plaintiff Powell commenced this action for return of a security deposit by filing a summons and complaint on March 1, 2012. In November 2012, Plaintiff moved for a Default Judgment based upon Defendant's failure to answer the complaint. Defendant Fink cross-moved to dismiss the complaint upon several grounds. First, Defendant stated that an action was pending in the East Hampton Justice Court wherein Fink was Plaintiff and Powell was Defendant. Fink also argued that Powell failed to serve the complaint within 120 days of its filing, that the summons was defective, and that there was improper service.
The action was transferred to this Court, pursuant to Civ. Pract. Laws & Rules (CPLR) §325(d) on January 22, 2013. On February 19, 2013, this Court removed the action from the East Hampton Justice Court to this Court, and referred the remaining issues to be determined after a hearing. A Traverse Hearing was conducted on April 22, 2013. Plaintiff was represented by counsel; Defendant, a retired attorney still maintaining his license, represented himself.
TESTIMONY
Plaintiff's first witness was Richard Downs. Downs was the process server used by Plaintiff's counsel in this action. Downs has been serving process for four (4) years, and this was the first time he has had to testify at a Traverse Hearing. He recalled being contacted prior to March 1, 2012, by Plaintiff's counsel to serve a summons and complaint. On March 1, 2012, he drove to 100 Main Street, Wainscott, NY. His belief that it was Defendant's address was based upon the subject lease which was in his possession. He described the structure as appearing as if it had two parts connected by a middle section; as though one part was an original main building and the second part was an addition. There were two (2) doors, both on the street side of the structure, one on the east end of the structure and one on the west end of the structure. Each door had a door bell, which he rang without response. He waited about an hour from 5:30pm until 6:30pm before departing. Downs returned to the address on March 2, 2012, at about 7:40pm. Again, Downs rang both door bells. There was no indication that anyone was present. He returned a third time, on March 3, 2012, at 10:45am. He tried the first door without any response. When he approached the second door, he noticed luggage inside which he had not seen during the prior two visits. He rang the bell, and a young male responded to Downs through the glass. Downs asked if the male was Defendant Fink. The male denied being Mr. Fink and when Downs explained to the male that he had papers for Fink, the young male turned and walked away. Downs then taped the papers to the door. Downs then testified that he mailed a copy of the papers to PO Box 101, Wainscott NY in an envelope marked "personal and confidential;" it did not have any indication that it was from any attorneys office. He could not recall if he had placed any return address on the envelope. The affidavit of service, marked amended, was admitted into evidence without objection, and reflected the mailing to the PO Box on March 6, 2012. Downs said he used the Department of Defense (DOD) website to rule out that Defendant was in the military. Also admitted into evidence was the March 6, 2012, post office receipt evidencing the mailing.
Defendant Fink cross-examined Downs. Defendant admitted into evidence without objection a copy of the summons. The summons, dated March 1, 2012, had Index Number 12-07159 written upon its face. It also bore a stamp by the County Clerk marked "FILED" and dated March 1, 2012. Defendant's address was listed as 100 Main Street, Wainscott, NY. Downs described the premises as having a driveway to the left, two walkways, one to the east and one to the west, towards what appeared to be an original structure with a possible add-on. Downs believed the structure to be two-stories, possibly three. He recalled white doors, and possibly brown colored cedar shake siding. Defendant then marked four photographs for identification and presented them to Downs. Downs did not recognize any of the pictures as being of the house where he served process. After seeing a fence in one picture, he did not recall that the house had a fence. After further attempts by Defendant to question Downs about the photographs, Downs maintained that he did not recognize any of the pictures as being that of the house.
The Court then made inquiry of Downs about the young male. Downs described the male as being about 20 years old, dark hair, and an athletic build. Downs engaged the male in a dialogue, so Downs knew that the male spoke English, even though, in his opinion, it had an Irish accent to it. Downs said he identified himself as a process server. The male said he was not David Fink and just started to walk away. The male did not say that David Fink lived there, or that David Fink was there. Both parties were permitted to make further inquiry of Downs following the Court's question.
Defendant Fink continued questioning Downs. An additional post office receipt was admitted by Plaintiff into evidence without objection. That receipt was for a mailing March 5, 2012. A second proof of service was admitted into evidence reflecting the same three attempts at 100 Main Street, Wainscott, NY, but indicating a mailing to 100 Main Street, Wainscott, NY. The proof of service was stamped "FILED" by the County Clerk on March 5, 2012. When Fink asked Downs to look at both post office receipts, Downs could not explain why the March 5, 2012, mailing weighed 1.50 oz. but the March 6, 2012 mailing weighed 2.60 oz.
Plaintiff next called Defendant Fink to testify. Fink was handed a photocopy of an envelope addressed to "David Fink, PO Box 101, Wainscott, NY 11975," bearing a stamp "Personal and Confidential," and having a return address of nothing more than "PO Box 650, Aquebogue NY 11931." Defendant denied ever seeing the envelope. When Fink was then provided a March 19, 2012, letter written by Fink to Plaintiff's counsel indicating that it contained a copy of the envelope which he had just denied seeing, Fink then acknowledged receiving the envelope.
The Plaintiff rested. The Defendant then rested while relying upon his motion papers. Based upon those papers, Defendant while appearing in the East Hampton Justice Court on January 10, 2012, informed Plaintiff's counsel that Defendant was going to be out of the United States from January 11, 2012, through March 2, 2012. Defendant also submitted a copy of his American Airline boarding pass revealing he returned to New York on March 2, 2012.
ANALYSIS
Defendant's remaining issues on this motion were:
1) whether the Plaintiff failed to serve the summons and complaint within 120 days as required by CPLR §306-b,An action is commenced by filing a summons and complaint. CPLR §304. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action. CPLR 306-b.
2) whether the Plaintiff failed to meet the "due diligence" requirement for "nail and mail" service when Plaintiff's counsel knew Defendant was out of the country yet attempted to serve Defendant at his residence during that period and, therefore, failed to properly serve the summons pursuant to CPLR §308, and
3) whether the summons was materially defective, pursuant to CPLR §2101, for failing to state the "date purchased" or the index number, or the defendant's full address and that the complaint was defective because it did not include the signature page or the verification?
CPLR 305 and 2101(c) each address the form requirements for the summons. A summons shall specify the basis of the venue designated and if based upon the residence of the plaintiff it shall specify the plaintiff's address, and also shall bear the index number assigned and the date of filing with the clerk of the court. CPLR 305. Each paper served or filed shall begin with a caption setting forth the name of the court, the venue, the title of the action, the nature of the paper and the index number of the action. CPLR 2012(c). At any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced. CPLR 305(c). Defects in proof of proper service of process go to form and not to jurisdiction of court and hence may be amended so as to have record conform to true facts. Air Conditioning Training Corp. v. Pirrote, 270 A.D. 391, 60 N.Y.S.2d 35 (1st Dept 1946). See also, Bell v Bell, Kalnick, Klee & Green, 246 AD2d 442, 668 NYS2d 177 (1st Dept 1998); Bassin-Schneider v Stutler, 2013 NY Slip Op 50608(U), 2013 NY Misc Lexis 1586 (Sup Ct, New York County 2013); Bauman v. Tenger, 108 N.Y.S.2d 696 (NY Munic Court 1951). Ordinarily, proper affidavit of process server attesting to personal delivery of summons to a party is sufficient to support finding of jurisdiction; but where there is sworn denial of service by party allegedly served, affidavit of service is rebutted and jurisdiction must be established by preponderance of the evidence at hearing. Griffin v. Griffin, 215 AD2d 386, 625 N.Y.S.2d 656 (2d Dept 1995).
Service of process must be made in strict compliance with statutory methods: "Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court." Macchia v. Russo, 67 NY2d 592, 505 N.Y.S.2d 591, 496 N.E.2d 680 (1986). A defendant's receipt of actual notice of the action, in other words, does not estop him from challenging service that was made in an unauthorized manner. "When the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents." Raschel v. Rish, 69 NY2d 694, 512 N.Y.S.2d 22, 504 N.E.2d 389 (1986). See also, Feinstein v. Bergner, 48 NY2d 234, 422 N.Y.S.2d 356, 397 N.E.2d 1161 (1979). Personal service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served; or
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service; or 3. [omitted]; or
4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing. CPLR 308
It has been held that the meaning of delivery in CPLR 308(2) is the same as in subdivision (1), i.e., tender of the papers, except that pursuant to 308(2) the recipient need only be a person of suitable age and discretion. Leaving process in the recipient's general vicinity is the functional equivalent of delivery if the recipient resists the service, as, for example, by refusing to open the door after the process server has announced his or her mission. Bossuk v. Steinberg, 58 NY2d 916, 460 N.Y.S.2d 509, 447 N.E.2d 56 (1983). See also, Duffy v. St. Vincent's Hosp., 198 AD2d 31, 603 N.Y.S.2d 47 (1st Dept 1993) where delivery component of CPLR 308(2) was satisfied where papers were left on nearby lawn after security guard refused to permit entry to residential community or to accept papers at gate. The "due diligence" component of CPLR 308(4) will not be satisfied in the case of an affixing at a defendant's dwelling place, regardless of how many attempts are made to serve a person of suitable age and discretion at that location, unless the plaintiff also made genuine inquiry as to the defendant's whereabouts and place of employment. Serraro v. Staropoli, 94 AD3d 1083, 943 N.Y.S.2d 201 (2d Dept 2012). In Serraro, the process server's failure to inquire about the defendant's place of employment or work schedule was made worse by the fact that the attempts to serve at the residential address were all made on weekdays at times when it reasonably could have been expected that the defendant was either at work or in transit to work.
The Court will first address the Defendant's argument that the summons was facially defective. Five components to the summons were required:
1) the caption, or name of the parties,The Court examined the Defendant's evidence. The summons submitted by the Defendant bore the index number 12-07159, and designated Suffolk County as the venue based upon Plaintiff's address. Plaintiff's address was then set forth on the face of the summons directly to the right of the caption naming the parties. The summons also bore the stamp of the Suffolk County Clerk, marked "FILED," and dated March 1, 2012. Each of these components were in compliance with CPLR §305 and §2101. Defendant failed to introduce any summons to the contrary. Similarly, Defendant failed to submit any proof of a defective complaint. The Court also could not find evidence to support Defendant's contention that the summons bore his incomplete address. The summons inspected by the Court set forth Defendant's address as 100 Main Street, Wainscott, NY 11975. In his motion papers Defendant submitted a copy of his East Hampton Justice Court amended complaint which set forth his address as 100 Main Street, Wainscott, NY 11975, and his Post Office Box. Defendant failed to prove by a preponderance of the evidence that the subject summons and complaint were defective.
2) the basis of the venue designated,
3) it shall state the plaintiff's address, if such was the basis of venue,
4) it shall state the index number, and
5) it shall state the date of filing with the clerk of the court.
The Court next moves to the issue of service. While it was clear that the Defendant was trying to test the process server's credibility by showing him pictures of four different houses, the Defendant failed to go further and testify that one of the houses was in fact Defendant's. Instead, the testimony was left with the process server saying that he did not recognize any of the four houses without any dispute. It also was not disputed that the process server made the three attempts at service that he testified he made, and which appeared in both proofs of service. The Court had no basis upon which to discredit the process server's testimony. Any failure to meet the "due diligence" requirement of CPLR §308(4) was not the fault of the process server, but was the result of the Plaintiff's attorney's direction. Relying on the spirit of cases such as Serrarbo, it was disingenuous to direct service of process upon Defendant when Plaintiff's counsel was told he would be out of the country until March 3, 2012. The Court holds that the "due diligence" requirement was not met, and that service was not completed pursuant to CPLR §308(4).
However, the Court does hold that service was effected pursuant to CPLR §308(2). The process server's uncontroverted testimony was that on March 3, 2012, at Defendant's address, he identified himself as a process server to a young man in his 20s. The man told the process server that he was not David Fink, turned and walked away without taking the papers from the process server. Again, without a basis to discredit the process server's testimony, the 20-year old was a person of suitable age and discretion. As set forth above, tender of papers was all that was required to such a person, and leaving process in the recipient's general vicinity was the functional equivalent of delivery because the recipient refused to open the door after the process server announced his mission. See, Bossuk v. Steinberg, supra. The process server affixed the papers to the door, and two-days later mailed a copy to the street address, and three-days later to the post office box. Proofs of service were filed on each of the days mailed. And, although he played coy when he denied ever seeing the envelope of which he sent a copy to Plaintiff's counsel, Defendant finally acknowledged receiving the mailing which merely confirms the mailing was made as testified about in the hearing. By conforming the proof of service to the facts adduced after testimony, the Court holds that service was effected properly, and the filing provisions of CPLR §308(2) and §306-b were satisfied.
By reason of the above, it is hereby
ADJUDGED, that the Plaintiff failed to use "due diligence" before attempting to effect service pursuant to CPLR 308(4) in light of the evidence that Plaintiff knew Defendant was out of the country when service was attempted; and it is further
ADJUDGED, that service of the summons and complaint, dated March 1, 2012, was effected pursuant to NY Civ. Pract. Laws & Rules § 308(2); and it is further
ADJUDGED, that the summons complied with the form requirements of CPLR 305 and 2101; and it is further
ADJUDGED, that the summons and complaint were served before the expiration of 120 days after commencement of the action; and it is further
ORDERED, that Defendant's motion to dismiss this action upon the grounds that service of process was improper, that the summons and complaint were defective, and that the summons and complaint were not served within 120 days after comment of the action is denied; and it is further
ORDERED, that Plaintiff's motion for a Default Judgment is hereby denied, and Defendant shall serve and file his Answer in this action no later than May 17, 2013; and it is further
ORDERED, that all parties are directed to appear for conference before this Court on MAY 23, 2013, 9:30AM.
This constitutes the decision and order of the Court.
ENTER
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Judge