Opinion
Index No. E2020006579
01-12-2023
Shawnese CRUTCHER, Plaintiff, v. Kimberly SUTTON and Markeith McQueen, Defendants.
Plaintiff Shawnese Crutcher ("Plaintiff") commenced this action by Summons and Complaint on August 27, 2020. Plaintiff alleges that she was injured in an automobile accident in Rochester, New York on March 25, 2019. Defendant Kimberly Sutton ("Defendant Sutton") was driving a vehicle owned by and registered to Defendant Markeith McQueen ("Defendant McQueen"), which vehicle allegedly struck Plaintiff's vehicle, causing her injuries.
On October 15, 2021, the Court granted a default judgment in favor of Plaintiff and against Defendants, and scheduled an Inquest and Damage Assessment for November 3, 2021. The inquest was adjourned twice, and then, on March 22, 2022, Defendants filed a motion by order to show cause seeking to vacate the default judgment. Defendants’ submissions in support of that motion included the affidavit of Defendant McQueen stating that his address at the time of service of the Summons and Complaint was not the address listed in the affidavit of service filed by Plaintiff, and further stating that Defendant Sutton, his mother, was not residing at the address in Florida provided in Plaintiff's affidavit of service but was instead living in Rochester, New York at the time of service. Plaintiff stipulated to an Order vacating the default judgment against the Defendants, which Order was signed by the Court on May 18, 2022.
Currently before the Court is Defendants’ motion [NYSCEF Motion No. 3] to dismiss the Complaint for failure to properly serve Defendants within 120 days after filing the action, as required by CPLR 306-b, and Plaintiff's cross motion [NYSCEF Motion No. 4] for an extension of time to serve Defendants.
In support of their motion, Defendants argue that the documentary evidence establishes that Plaintiff failed to properly effectuate service of the Summons and Complaint within 120 days after filing the action, or within 120 days after the Court issued the stipulated Order vacating default judgment. As such, the Complaint should be dismissed pursuant to CPLR 306-b.
In opposition to Defendants’ motion, Plaintiff argues that she made no further attempts to serve Defendants after the Order vacating default judgment was entered because the parties were contemplating settlement of the matter. Plaintiff further argues that the initial service of the Summons and Complaint on Defendant McQueen was, in fact, proper because Defendant McQueen was served at the address on file with the Department of Motor Vehicles, and that Defendants are estopped from asserting improper service for this reason. The initial service on Defendant Sutton was also proper because she was served at an address in Florida identified on a Freedom of Information Letter obtained from the U.S. Postmaster.
In support of Plaintiff's cross motion for an extension of time to effectuate service, Plaintiff urges the Court to grant an extension in the interest of justice, as Plaintiff exercised due diligence in locating Defendants’ addresses to properly serve them, a dismissal would bar Plaintiff from pursuing this action because the statute of limitations has expired, and Defendants have suffered no prejudice attributable to the delay in service.
Defendants, in response to Plaintiff's cross motion, argue that Plaintiff's motion was not timely filed and should be stricken.
As an initial matter, the Court rejects Defendants’ request to strike Plaintiff's response papers and cross motion as untimely. CPLR 2214(b) instructs that where, as here, "a notice of motion served at least sixteen days before [the return date] so demands," "[a]nswering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before" the return date. Plaintiff's response papers were, indeed, untimely under CPLR 2214(b). Defendants’ motion was filed on July 15, 2022. The original return date of August 23, 2022 was adjourned twice, ultimately to November 3, 2022. Plaintiff did not file her response papers or cross motion until the evening of October 31, 2022, less than three days before the return date.
" ‘While a court can in its discretion accept late papers, CPLR 2214 and [CPLR] 2004 mandate that the delinquent party offer a valid excuse for the delay ... Additional factors relevant when essentially extending the return day by accepting late papers include, among others, the length of the delay and any prejudice’ " ( Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C. , 71 AD3d 1415, 1416 [4th Dept 2010] ).
Here, Plaintiff's counsel, at oral argument, indicated that the response papers were delayed because of ongoing conversations with insurance adjusters concerning this case. Counsel also noted that discovery continued during this period. Further, it does not appear that Defendant suffered any prejudice as a result of the delay. The very provision under which Defendants move to dismiss — CPLR 306-b — provides two options to the Court when service of the Summons and Complaint was untimely: dismiss the action without prejudice or extend the time for service upon good cause shown or in the interest of justice (see CPLR 306-b ). As such, Plaintiff's cross motion seeking an extension of time to serve could not have come as a surprise to Defendants. The Court's discretion to extend Plaintiff's time to effect service is specifically contemplated by the statute even in the absence of a cross motion.
Moving on to the merits of the parties’ respective motions, CPLR 306-b provides:
Service of the summons and complaint, ... shall be made within one hundred twenty days after the commencement of the action ... If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.
( CPLR 306-b ).
The parties do not dispute that Plaintiff attempted service upon both Defendants within 120 days after commencement of this action. The dispute is whether that service was proper and effective.
As to Defendant McQueen, Plaintiff's affidavit of service states that on September 9, 2020, Defendant McQueen was served at a Bauer Street address with an individual of suitable age and discretion, and the papers were also mailed to him at the same address on September 10, 2020. The affidavit states: "DEPONENT WAS GREETED BY FEMALE OCCUPANT WHO STATED THAT MARKEITH MCQUEEN NO LONGER LIVED THERE. SHE TOOK DOCUMENTS RELUCTANTLY SAYING SHE WAS THROWING THEM OUT. SERVICE COMPLETED PER ADDRESS CONFIRMATION WITH NYS DEPARTMENT OF MOTOR VEHICLES."
The affidavit of service as to Defendant Sutton states that Sutton was served on October 29, 2020 by affixing the papers to the door of a Sarasota, Florida address and mailing them to the same address. The affidavit of service lists three previous unsuccessful attempts at personal service upon Defendant Sutton and states that a current occupant at the Florida apartment complex stated that Sutton was not known there and no one by that name resides at that address.
Based on these affidavits, service was attempted upon Defendant McQueen and Defendant Sutton pursuant to CPLR 308(2) and CPLR 308(4), respectively. As relevant, CPLR 308(2) permits personal service by delivering the summons within the state to a person of suitable age and discretion at the actual ... 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 ..." ( CPLR 308[2] ). CPLR 308(4) permits so called "nail and mail" service only where service under CPLR 308(1) and 308(2) "cannot be made with due diligence, by affixing the summons to the door of [the] ... dwelling place or usual place of abode of the person to be served ... and by ... mailing the summons to such person at his or her last known residence ( CPLR 308[4] ).
Both CPLR 308(2) and 308(4) require that the defendant be served at his or her "actual address" ( Alostar Bank of Commerce v Sanoian , 153 AD3d 1659, 1660 [4th Dept 2017] ). "While ‘[o]rdinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served ..., a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit’ " ( Id. at 1659, quoting Wachovia Bank, N.A. v Greenberg , 138 AD3d 984, 985 [2d Dept 2016] ).
The Court questions whether Plaintiff's affidavits of service in this case can be considered prima facie evidence that Defendants were validly served, given that the affidavits on their face state that the process servers were told that Defendants did not live at the addresses at which they were served. However, even assuming that the affidavits of service are prima facie evidence of valid service, Defendants have rebutted that presumption by submitting the same affidavit of Defendant McQueen that was submitted in support of Defendants’ March, 2022 application to vacate the default judgment. Defendant McQueen averred that, at the time of the attempted service, he did not live at the Bauer Street address identified on the affidavit of service. Defendant McQueen's affidavit then provided his actual address. Defendant McQueen further averred that Defendant Sutton, his mother was living in Rochester at the time of attempted service, not at the Florida address indicated in the affidavit of service.
The Court finds that the documentary evidence submitted by Defendants establishes that Defendants were not served at their actual addresses within 120 days of commencement of the action. There is no dispute that Plaintiff did not re-attempt service upon Defendants after the Order vacating default judgment was entered, even though Plaintiff was aware of Defendant McQueen's affidavit establishing that Defendants were not served at their actual addresses.
While Plaintiff correctly asserts that a defendant may be estopped from challenging service where service was effected at the address on file with the DMV, that argument is without merit where there is no evidence that Defendant took actions to conceal his actual address and "where the record does not contain a DMV driver's abstract for the defendant" ( Itshaik v Singh , 165 AD3d 902, 904 [2d Dept 2018] ). Here, Plaintiff has failed to provide an abstract of the DMV records purportedly relied upon by the process server, and Plaintiff submits no evidence that Defendant McQueen took actions to conceal his address. To the contrary, Defendant McQueen provided his correct address in his affidavit.
The Court also rejects Plaintiff's argument that Defendant Sutton attempted to conceal her address by providing the P.O. Box address recorded on the police accident report dated March 25, 2019. Defendant McQueen's March, 2022 affidavit and the affidavit of service itself established that Defendant Sutton did not reside at the Florida address at the time of service. Plaintiff does not submit any evidence demonstrating that, after learning this information, Plaintiff exercised due diligence in attempting to obtain Defendant Sutton's actual address.
Consequently, the Court "conclude[s] that, inasmuch as plaintiff failed to serve defendant[s] at [their] actual address[es], as is required by both CPLR 308(2) and (4), the court lack[s] personal jurisdiction over defendant[s]" ( Alostar Bank of Commerce , 153 AD3d at 1660 ).
Where it is concluded that service was not properly effected upon Defendants, "the express language of CPLR 306-b gives the court two options: dismiss the action without prejudice; or extend the time for service in the existing action" ( Henneberry v Borstein , 91 AD3d 493, 495 [1st Dept 2012] ). In this case, where "defendants made their motions after the statute of limitations had expired[,] ... the court's options [are] limited to either dismissing the action outright, or extending the time for plaintiff to properly effect service" ( Id. at 495 ).
CPLR 306-b permits an extension of time for service "upon good cause shown or in the interest of justice" ( CPLR 306-b ). The "interest of justice standard [is] more flexible than the good cause standard" because it "accommodate[s] late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant" ( Henneberry , 91 AD3d at 496 [internal quotations omitted]). Under the interest of justice standard, "the court ‘may consider [plaintiff's] diligence, or lack thereof, along with any other relevant factor ..., including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant’ " (Id ., quoting Leader v Maroney, Ponzini & Spencer , 97 NY2d 95, 104-106 [2001] ).
Here, in consideration of the interest of justice factors noted above and the circumstances of this case, the Court grants Plaintiff's motion for an extension of time to effect service upon Defendants. While the Court has considered all relevant factors, the Court finds it most significant that the statute of limitations has expired and a dismissal without prejudice would effectively deprive Plaintiff of the ability to have this action determined on the merits. Further, "construing the pleading in the light most favorable to plaintiff, as is required on consideration of a CPLR 3211 motion to dismiss," the Complaint appears to assert viable claims for recovery (see id. ). Lastly, Defendants are not prejudiced by this determination inasmuch as the parties have been continuously engaged in discovery and settlement efforts in this matter, and Defendants do not assert that delayed service has hampered their ability to obtain relevant evidence.
Accordingly, it is hereby
ORDERED that Defendants’ motion to dismiss [NYSCEF Motion No. 3] is hereby denied; and it is further
ORDERED that Plaintiff's cross motion seeking an extension of time to effect service upon Defendants [NYSCEF Motion No. 4] is hereby granted; and it is further
ORDERED that Plaintiff shall serve Defendants with the Summons and Complaint pursuant to CPLR 306-b and 308 within 45 days of the date of this Order.
This shall constitute the Decision and Order of Court.