Opinion
No. 06–0062.
12-07-2016
DISCOVER BANK, Plaintiff, v. Anita SHIELDS a/k/a Anita L. Martin, Defendant.
Carol Van Houten, Esq., Selip & Stylianou, LLP, Woodbury, for Plaintiff. Benjamin M. Meskin, Esq. Brooklyn, for Defendant.
Carol Van Houten, Esq., Selip & Stylianou, LLP, Woodbury, for Plaintiff.
Benjamin M. Meskin, Esq. Brooklyn, for Defendant.
LISA M. FISHER, J.
Defendant moves via order to show cause to vacate the June 28, 2006 default judgment and all resultant executions asserted against her in this action, including restoration to Defendant of any monies previously garnished, and 1) for dismissal of the action, or 2) to permit Defendant to serve an answer. The grounds for dismissal are lack of personal jurisdiction for improper service.
Specifically, Defendant contends she first learned of this action in June 2016 when she received an income execution. She reviewed the filed documents in this matter and learned Plaintiff's summons and complaint was filed on February 1, 2006. The summons and complaint noted her address as being in Prattsville, New York. The filed affidavit of service from Plaintiff's process server demonstrated attempted service on February 11, 2006, February 14, 2006, and February 15, 2006. On February 28, 2006, Plaintiff's process server affixed a copy of the summons and complaint to the front door of the Prattsville address and on March 1, 2006 mailed a copy of the summons and complaint to the Prattsville address.
Full addresses are redacted for confidentiality purposes. No two addresses are in the same town throughout this Decision and Order.
Defendant admits to living at the Prattsville address with her then boyfriend. However, she claims that relationship became abusive and she left the Prattsville address in October 2005. She seeks to prove that with an alleged Albany Medical Center record noting her "Perm Address" under "Address Details" as being in Oak Hill, New York, and her "Guarantor Details" as providing an address in Jewett, New York; such admission was from November 25, 2005 through February 16, 2006. Thereafter, she claims she lived at a different address and uses the birth certificate of her daughter dated April 26, 2006 to demonstrate her address as being in Coxsackie, New York. After the birth of her daughter, she avers she moved back to the Jewett address. She contends the Prattsville address was not her place of "residence, usual place of abode or actual place of business" when the summons and complaint was served.
Plaintiff opposes the motion, arguing that it exercised due diligence in serving Defendant. Specifically, Plaintiff argues its process server went to the Prattsville address three times to attempt service. The process server then contacted Shelly Brainard, Town of Prattsville Deputy Town Supervisor, who confirmed the Prattsville address was Defendant's address. Plaintiff also confirmed with the United States Postal Service that Defendant's Prattsville address was proper. Thereafter, Plaintiff sent numerous correspondence—dated on September 23, 2005 through February 6, 2010—to Defendant at the Prattsville address and none of them came back as undeliverable until April 6, 2010. During this time, Plaintiff again confirmed with the United States Postal Service that Defendant's address was the Prattsville address. Therefore, Plaintiff argues the motion to dismiss should be denied as it exercised due diligence in its searches. However, it should be noted that, notwithstanding its opposition, Plaintiff has consented to Defendant vacating the default judgment and filing an answer.
Defendant submits a reply, arguing the opposition "attempts to refute" that she did not move out of the Prattsville address because a postal search yielded confirmation of her being there. But she avers "after I moved out of that premises [Prattsville] I never filed a change of address form with the local post office, as I did not wish to be found by [her ex-boyfriend] ... and instead informed all persons and business contact with whom I wished to remain in contact that I have moved and how they could contact me." In further reply, Defendant provides an affirmation of Debra Scotto, attorney and friend of Defendant, who avers the Prattsville address was a business by Defendant's ex-boyfriend which was infamously shut down in late 2008 and became in "evident disrepair."
Legal Analysis
Personal service is governed by CPLR § 308, and subdivision (4)"affix and mail" can satisfy the requirements of RPAPL § 1371(2). (See Citibank, N.A. v. Demadet, 243 A.D.2d 532, 533 [2d Dept 1997] ["Since CPLR 308 categorizes [affix and mail] as personal service, it is a permissible means of ‘personal service’ of notice of an application for leave to enter a deficiency judgment, as required by RPAPL 1372[2]."].) In order to utilize the "affix and mail" provision under CPLR § 308, a party must first demonstrate that service under subdivisions (1) and (2) cannot be made with "due diligence" (see State of N.Y. Higher Educ. Servs. Corp. v. Sparozic, 35 AD3d 1069, 1070–71 [3d Dept 2006] ). "[T]he requirement of ‘due diligence’ must be strictly observed, and ... the burden of proving due diligence rests upon the plaintiff[" ( State of N.Y. Higher Educ. Servs. Corp. v. Cacia, 235 A.D.2d 986, at 883–84 [3d Dept 1997] ).
Further, "the requirements of ‘due diligence’ in attempting to make personal service are not rigidly prescribed" ( Jacoby v. New York State Bd. for Professional Med. Conduct, 295 A.D.2d 655, 656 [3d Dept 2002] ), and the courts "have never established a precise, minimum number of attempts at service which are necessary" ( Sparozic, 35 AD3d at 1071 ). Rather, "due diligence ... refers to the quality of the efforts made to effect personal service, ... not their quantity or frequency" ( Maines Paper & Food Serv., Inc. v. Boulevard Burgers Corp., 52 AD3d 1150, 1151 [3d Dept 2008] ).
If the requirements of "due diligence" are satisfied, CPLR § 308(4) permits personal service upon a natural person 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[.]" Here, it is not contested that Plaintiff did not exercise due diligence. Nonetheless, the Court finds due diligence given four attempts on different days and at different times. (See Sparozic, 35 AD3d at 1071–72 [finding due diligence when service was attempted three times, once each in the morning, mid-morning, and evening, all on weekdays, and the process server spoke with neighbors to confirm the location]; State of N.Y. Higher Educ. Servs. Corp. v. Upshur, 252 A.D.2d 333 [3d Dept 1999] [finding due diligence when service was attempted three times, once each in the morning, mid-day, and evening, on two weekdays and one weekend day, and the process server spoke with neighbors to confirm the correct location]; Hanover New England v. MacDougall, 202 A.D.2d 724 [3d Dept 1994], lv dismissed 83 N.Y.2d 907 [1994] [finding due diligence where service was attempted three times, once each in the morning and twice in the evening, on two weekdays and one weekend day, and spread out over a span of three weeks]; Mike Lembo & Sons, Inc. v. Robinson, 99 A.D.2d 872, 873–74 [3d Dept 1984] [finding due diligence when service was attempted three different times on three different dates].)
Nor is it contended that Plaintiff did not mail the summons and complaint to Defendant's "last known address," which it is also clear that Plaintiff did so.
Rather, it is contended that Plaintiff failed to "affix" to Defendant's "actual" dwelling place or "usual place of abode." Plaintiff is correct that this is not the same as a "last known address." (See Feinberg v. Bergner, 48 N.Y.2d 234, 239 [1979] ["While there may be some question as to whether there is a distinction between ‘dwelling place’ and ‘usual place of abode’, there has never been any serious doubt that neither term may be equated with the ‘last known residence’ of the defendant."] [citations omitted; footnote omitted].)
From the record, it is clear that Defendant moved several times after leaving the Prattsville address, including with an address listed at Oak Hill, Jewett, Coxsackie, and back to Jewett in a period of about six months. The test of actual dwelling place or usual place of abode requires an address where Defendant was physically present or where she lived with a sufficient degree of "permanence and stability" at the time of service so as to satisfy either the "dwelling place or usual place of abode" (see Feinberg, 48 N.Y.2d at 239, n. 3 ). There does not appear to be any such address during the time of service, with the last address with a sufficient degree of "permanence and stability" being the Prattsville address. Moreover, the Court rejects both the alleged Albany Medical Center and birth certificate as having any probative value as both are uncertified and unauthenticated; they are inadmissible.
While the Court believes the Prattsville address would indeed be the usual place of abode as noted above, the Court finds it unnecessary to make such finding. Because even if it is found that Plaintiff did not affix to Defendant's actual dwelling place or usual place of abode, Defendant admitted to concealing her address and "informed all persons and business contact with whom I wished to remain in contact[.]" Despite knowing she had a credit card with Plaintiff, she did not notify them of her address change. Her claim that the charges on her card must have been from her ex-boyfriend is both speculative and unsupported, as there is a notice from September 23, 2005 noting her default before she vacated the Prattsville address.
While not provided in evidence, this is normally a condition required in the credit card agreement she admitted to signing.
This is also not the only credit card debt obligation Defendant has attempted to avoid which found assignment with these chambers (see also Index No.: 08–0666). Defendant cannot commit a dereliction of her obligation to pay her bills under the guise of evading a single individual. She admitted to only contacting companies she wanted to remain in touch with, apparently not her creditors.
Therefore under these circumstances it is appropriate for Defendant to be estopped from asserting lack of personal jurisdiction and improper service as a defense. While it is true that "potential defendants ordinarily have no affirmative duty to keep those who might sue them abreast of their whereabouts" ( Feinstein, 48 N.Y.2d at 241–42 ), a defendant also cannot engage in conduct calculated to prevent another from learning of his new address. (See Dzembo v. Goran, 163 A.D.2d 723 [3d Dept 1990] ; see also Sherrill v. Pettiford, 172 A.D.2d 512 [2d Dept 1991] ; Lavery v. Lopez, 131 A.D.2d 820 [2d Dept 1987] ; Gilbert v. Lehman, 73 A.D.2d 793 [4th Dept 1979] ; Feinstein, 48 N.Y.2d at 241 ). Such has been held appropriate where a defendant failed to notify the post office or Department of Motor Vehicles of a change of address. (See Austin v. Tri–County Mem. Hosp., 39 AD3d 1223, 1224 [4th Dept 2007] [ordering traverse hearing to determine whether service was proper]; Stillman v. City of New York, 39 AD3d 301, 303 [1st Dept 2007] [estopping the defendant from challenging service where he failed to update his address as required by the Vehicle and Traffic Law § 505[5] ] ).
Here, Defendant has admitted that she acted in a manner to conceal her address for other people and businesses she did not wish to be in contact with. Whether inadvertently or not, or better said whether maliciously or not, her cloaking included at least two credit card companies who were creditors. The Court is not unsympathetic towards her flight from an abusive relationship, but this cannot be a shield in her other obligations and debts to creditors. Plaintiff confirmed with the Town Supervisor and the United States Post Office twice that Plaintiff had Defendant's proper address; this effort fell victim to Defendant's suppression. Given this, the Court is satisfied to estop Defendant from asserting lack of personal jurisdiction and lack of proper service. The affidavit Scotto is of no force, as the business operating at the Prattsville address closed down at least two years after the default judgment was obtained.
While some of the case law cited above finds that a traverse hearing is the proper remedy, given Defendant's admission she purposely concealed her address for all those that she did not avail herself to, the Court finds such hearing unnecessary.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that the branch of Defendant's order to show cause to vacate the default judgment entered on June 28, 2006 is GRANTED, and this matter is restored to active status; and it is further
ORDERED that the County Clerk's Office shall stricken such default judgment from its records, and extinguish any resultant income executions stemming from such default judgment; and it is further
ORDERED that the branch of Defendant's order to show cause to dismiss is DENIED; and it is further
ORDERED that the branch of Defendant's order to show cause to permit the service and filing of a late answer is GRANTED; and it is further
ORDERED that Defendant shall serve such late answer within 30 days of service of notice of entry of this Decision and Order; and it is further
ORDERED that all other relief requested and not addressed is DENIED, in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
Papers Considered:
Order to show cause, signed August 15, 2016; affidavit of Anita Shields, with annexed exhibits, dated August 9, 2016;
Affirmation in response to order to show cause, of Carol Van Hosten, Esq., with annexed exhibits, dated September 27, 2016; and
Reply affidavit of Anita Shields, dated October 10, 2016; reply affirmation of Debra Scotto, Esq., with annexed exhibits, dated October 10, 2016.