Opinion
650996/2019
06-29-2020
ALTICK & CORWIN CO., L.P.A., Plaintiff, v. Sandra MAYERSON, Defendant.
The Court has considered efiled documents 1 through 29.
Plaintiff had brought suit against defendant in the Common Pleas Court of Montgomery County, Ohio for legal services in the amount of $8,954.68; and on December 24, 2018, a default judgment was granted against Sandra Mayerson therefor. The judgment was entered on January 24, 2019 in Montgomery County, Ohio.
Altick & Corwin filed the summons and complaint here on February 15, 2019 for the same sum and submitted an affidavit of service that on April 9, 2019 service was effected at the Manhattan building Ms. Mayerson lived in on East 64th Street by leaving the summons and complaint with the building's doorman.
Plaintiff moves for an Order under CPLR § 3215 to enter a judgment based upon defendant's failure to answer or otherwise appear in this action. Ms. Mayerson states that until receiving these motion papers on about February 23, 2020, she had no knowledge of the Ohio action, and thus opposes the motion on two grounds: i) leaving with the doorman, without more, was improper personal service; and ii) the Ohio court lacked personal jurisdiction.
Mayerson argues that proper service on the doorman of party's residence requires that the process server ask for access up to the apartment and be denied, citing F.I. DuPont, Glore Forgan & Co. v. Chen , 41 NY2d 794 and Meltzer, Lippe, Goldstein & Schlissel, P.C. v Brown , Supreme Court, Nassau County, 2004 (efiled document 27). Plaintiff also relies on F.I, Dupont and cites Bank Am., N.A. v Grufferman , 117 AD3d 508, 1st Dept. The Court of Appeals described a fairly assiduous effort:
On Tuesday, September 24, 1974, a Deputy Sheriff went to the apartment house ... in which defendants resided. It appears that he was permitted entry and made his way to defendants' apartment, No. 4A. On receiving no response, he left a card inviting defendants to communicate with him. On Thursday, September 26, he returned, again was permitted entry and on receiving no response left his card under the door of defendants' apartment for the second time. When he went back to the apartment house on Monday, September 30, he was greeted by the doorman. He identified himself and inquired about defendants. After informing the Deputy Sheriff that defendants had received his message, the doorman would not permit him to go up to defendants' apartment. The deputy then handed the doorman two copies of the summons and complaint, one set for each defendant. On returning to his office the deputy also mailed copies to each defendant. [ 41 NY2d at 795-96 ].
In Grufferman , following a traverse hearing, the court credited the process server's testimony that the doorman denied access to defendants' apartment. See also Edwards-Blackburn v City of New York, 181 AD3d 791, 2d Dept.
Ms. Mayerson proposes a traverse hearing, but such tends to be most useful where it is potentially dispositive. Here, the underlying Ohio case raises issues; the court in granting the default said: "[I]t appearing to the Court that the Defendant Sandra Mayerson was duly served with summons on or about November 6, 2018, and that said Defendant failed to file or answer or file other responsive pleading to the Complaint herein within the time permitted by law" (emphasis added, document 8). Moreover, the order of the Ohio court - - and for that matter, the plaintiff's submissions - - contain no information as to the obligation of defendant with respect to the lawyers working on the estate of her father.
Defendant explains in the opposition papers that before his death, her father retained Altick & Corwin to provide legal services for a will and the administration of his estate (efile document 25, ¶4). As Sandra Mayerson states in her February 11, 2020 affidavit:
Although I followed up with Plaintiff on numerous occasions as executrix of my father's estate ... the Plaintiff never provided me with an invoice ... [or] contacted me regarding any fees which I or the estate of my father purportedly owed to it. Since I never retained them personally and whatever services were performed for my father's estate, I could not personally be liable to them. [Efiled document 26, paragraphs 9, 11 and 13].
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NOW therefore, in view of the foregoing,
IT IS ORDERED, that plaintiff's motion no. 001 is denied.
IT IS FURTHER ORDERED that defendant will have 45 days from the date of this Order to serve her answer on plaintiff; a status conference by telephone or Skype will be conducted on Wednesday, August 19, 2020 at 2:30 p.m., or as otherwise mutually agreeable.