Opinion
No. 6892–2015.
10-12-2016
Dennis M. BROWN, County Attorney for the County of Suffolk, Plaintiff/ Claiming Authority, v. A 1998 DODGE, VIN NO. 1B7GG22X1WS701157, Irene Portillo, Defendant(s).
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff/claiming authority, dated May 20, 2016, and supporting papers; and now
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the motion (001) by the petitioner/claiming authority, Dennis M. Brown, County Attorney for the County of Suffolk ("the County"), which seeks a default judgment against the noncriminal defendant, Irene Portillo, and forfeiture of said noncriminal defendant's 1998 Dodge, VIN # 1B7GG22X1WS701157, pursuant to Suffolk County Code ("SCC"), Chapter 420, is hereby denied for the reasons set forth herein; and it is further
ORDERED that the County shall promptly make the noncriminal defendant's 1998 Dodge, VIN # 1B7GG22X1WS701157, seized by the County on or about October 17, 2014, available for release to the noncriminal defendant at the current place of storage (without any charge for towing, maintenance or storage fees), as set forth herein; and it is further
ORDERED that the County shall promptly serve notice upon the noncriminal defendant, by personal delivery, or by Certified Mail (return receipt requested) and First Class Mail to his/her address on file with the New York State Department of Motor Vehicles, that he/she has the right to take possession of the subject vehicle at the current place of storage (without any charge for towing, maintenance or storage fees), and that in the event of failure to take possession of the vehicle within 60 days after such notice, the vehicle will be subject to forfeiture upon application by order to show cause by the County for an order granting forfeiture on grounds of the noncriminal defendant's failure to take timely possession of the subject vehicle; and it is further
ORDERED that counsel for the movant shall promptly serve a copy of this Order upon said noncriminal defendant by Certified Mail (return receipt requested) and First Class Mail, and shall thereafter file the affidavit(s) of such service with the Suffolk County Clerk, and annex a copy of such proof of service to any future motions submitted in this matter.
First, the County has failed to submit evidentiary proof of compliance with the personal service provisions of CPLR § 308 regarding "due diligence" for those defendants served by the "nail and mail" method pursuant to CPLR § 308(4), sufficient to establish jurisdiction over the defendant(s), not merely a showing of several attempts to serve a defendant at his or her residence without a showing that there was first a genuine inquiry about the defendant's whereabouts and place of employment.
In support of the motion, the County submits an affidavit of purported service by the so-called "nail and mail" method of service pursuant to CPLR 308(4) ; however, there is no indication that the Deputy Sheriff attempted to inquire about or serve the defendant at a place of employment. The "nail and mail" method of service pursuant to CPLR § 308(4) may be used only where personal service under CPLR § 308(1) and (2) cannot be made with "due diligence" (see Krisilas v. Mount Sinai Hosp., 63 AD3d 887, 882 N.Y.S.2d 186 [2d Dept 2009] ; Lemberger v. Khan, 18 AD3d 447, 794 N.Y.S.2d 416 [2d Dept 2005] ). The due diligence requirement of CPLR § 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received (see Serraro v. Staropoli, 94 AD3d 1083, 943 N.Y.S.2d 201 [2d Dept 2012] ; McSorley v. Spear, 50 AD3d 652, 854 N.Y.S.2d 759 [2d Dept 2008] ; Estate of Waterman v. Jones, 46 AD3d 63, 843 N.Y.S.2d 462 [2d Dept 2007] ; O'Connell v. Post, 27 AD3d 630, 811 N.Y.S.2d 441 [2d Dept 2006] ; Scott v. Knoblock, 204 A.D.2d 299, 611 N.Y.S.2d 265 [2d Dept 1994] ; Kaszovitz v. Weiszman, 110 A.D.2d 117, 493 N.Y.S.2d 335 [2d Dept 1985] ). A defendant's eventual awareness or actual awareness of pending litigation will not affect the absence of jurisdiction over him or her where service of process is not effectuated in compliance with CPLR 308 (see Washington Mut. Bank v. Murphy, 127 AD3d 1167, 10 NYS3d 95 [2d Dept 2015] ; Krisilas v.. Mount Sinai Hosp., 63 AD3d 887, 882 N.Y.S.2d 186 [2d Dept 2009] ).
What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality (see Aurora Loan Services, LLC v. Gaines, 104 AD3d 885, 962 N.Y.S.2d 316 [2d Dept 2013] ; Serraro v. Staropoli, 94 AD3d 1083, 943 N.Y.S.2d 201 [2d Dept 2012] ; McSorley v. Spear, 50 AD3d 652, 854 N.Y.S.2d 759 [2d Dept 2008] ; Estate of Waterman v. Jones, 46 AD3d 63, 843 N.Y.S.2d 462 [2d Dept 2007] ). Attempting to serve a defendant at his or her residence without showing that there was a genuine inquiry about the defendant's whereabouts and place of employment is fatal to a finding of due diligence as required by CPLR § 308(4) (id; Cadlerock Joint Venture, L.P., Appellant, v. Marcus Kierstedt, 119 AD3d 627, 990 N.Y.S.2d 522 [2d Dept 2014] ; Sanders v. Elie, 29 AD3d 773, 816 N.Y.S.2d 509 [2d Dept 2006] ). Further, absent any evidence that the process server attempted to determine that the address where service was attempted was, in fact, the actual dwelling or usual place of abode of the defendant, such as by searching telephone listings or making inquiries of neighbors, the requirement of CPLR § 308(4), that service under CPLR § 308(1) and (2) first be attempted with "due diligence," is not met (see McSorley v. Spear, 50 AD3d 652, 854 N.Y.S.2d 759 [2d Dept 2008] ; Kurlander v. A Big Stam, Corp., 267 A.D.2d 209, 699 N.Y.S.2d 453 [2d Dept 1999] ).
Since the County has failed to meet the "due diligence" requirement for "nail and mail" service under CPLR § 308(4), jurisdiction over the defendant has not been established and the motion must be denied (Sanders v. Elie, 29 AD3d 773, 816 N.Y.S.2d 509 [2d Dept 2006] ; Earle v. Valente, 302 A.D.2d 353, 754 N.Y.S.2d 364 [2d Dept 2003] ; Annis v. Long, 298 A.D.2d 340, 751 N.Y.S.2d 370 [2d Dept 2002] ).
Second, the County has failed to submit an affidavit of military status: (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the County is unable to determine whether or not the defendant is in military service, stating that the County is unable to determine whether or not the defendant is in military service, as required by 50 USCS § 521 [b] ).
Title 50 USCS Appx § 521, which applies in state courts, was enacted for the "protection of service members against default judgments." Pursuant to 50 USCS Appx § 521(a), this section "applies to any civil action or proceeding in which the defendant does not make an appearance" (emphasis supplied). Under 50 USCS Appx § 521(b)(1), "the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit: (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service." Under § 521(b)(4), "[t]he requirement for an affidavit under paragraph (1) may be satisfied by a statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury" (emphasis supplied). Here, the County's affidavit of service does not contain the statutorily required statement as to the military status of the defendant. Therefore, pursuant to 50 USCS Appx § 521(b), a judgment of default may not be entered against the defendant.
Lastly, the County has failed to produce clear and convincing evidence that the noncriminal defendant engaged in affirmative acts which aided, abetted or facilitated the conduct of the criminal defendant, as required by SCC § 420–7G.
Pursuant to SCC § 420–7E, the County may commence a civil action against a noncriminal defendant to recover property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or the instrumentality of an offense, as those terms are defined in SCC § 420–5. With regard to noncriminal defendants in forfeiture proceedings, the Suffolk County Code (SCC) states: "No property shall be forfeited under [SCC Chapter 420] unless the [County] produces clear and convincing evidence that the noncriminal defendant engaged in affirmative acts which aided, abetted or facilitated the conduct of the criminal defendant (SCC § 420–7G) (emphasis added). Here, the County has failed to submit any evidence (much less clear and convincing evidence) that the noncriminal defendant "engaged in affirmative acts which aided, abetted or facilitated the conduct of the criminal defendant." (see SCC § 420–7G).
The Code authorizes the Court to exercise its discretion, in the interests of justice, in determining the forfeiture liability of a noncriminal defendant. In this regard, SCC § 420–9B states: "Nothing contained in this article shall require a court to order a forfeiture when it determines, in its discretion, that it is in the interests of justice not to do so." Given the lack of provision detailing the means and method for return of a defendant's vehicle, and given the "interests of justice" discretion afforded by the Code, the Court directs that the County shall notify the noncriminal defendant by actual notification, or by certified mail (return receipt requested) and by first class mail, to his/her address on file with the New York State Department of Motor Vehicles, of his/her right to take possession of the subject vehicle at the current place of storage.
Since the County has failed to produce clear and convincing evidence that the noncriminal defendant engaged in affirmative acts which aided, abetted or facilitated the conduct of the criminal defendant, as required by SCC § 420–7G, the noncriminal defendant shall not be required to pay any related charges or fees as a condition of release of the vehicle to him/her. It would be unjust to grant forfeiture against the noncriminal defendant under the circumstances presented herein, and it would be equally unjust to require him/her to pay any charges and fees related to seizure of his/her vehicle where the County has failed to show, by clear and convincing evidence, that he/she bears any culpability in this case.
In the event the noncriminal defendant fails to take possession of the vehicle within 60 days after notice by the County of his/her right to do so, then the County shall promptly submit an application by order to show cause for an order granting forfeiture on the basis of his/her failure to timely take possession of the vehicle. Such order to show cause shall include as exhibits a copy of the affidavit of service of this Order and a copy of the notice served upon the noncriminal defendant regarding his/her right to take possession of the vehicle.
Based upon the foregoing, the County's motion is denied.