Opinion
Index No. 520659/2022 Motion Seq. No. 2
04-17-2023
GOLDMAN SACHS BANK USA, Plaintiffs, v. ZALMEN WAGSCHAL and B&H MANAGEMENT U.S. LLC, Defendants,
Unpublished Opinion
PRESENT: HON. LEON RUCHELSMAN, JUDGE
DECISION AND ORDER
HON. LEON RUCHELSMAN, JUDGE
The defendant Zalmen Wagschal has moved .seeking to vacate an order dated October 7, 2022 granted on default. The plaintiff opposes the motion.. Papers, were submitted by the parties and after reviewing all the arguments this court, now makes the following determination.
This lawsuit was commenced by the filing of a summons and a motion for summary judgement in lieu of a complaint. The lawsuit concerns defendant's failure to pay back- loans furnished by the plaintiff. On August 1, 2022 the defendant was served pursuant to CPLR §308(4) by affixing the summons to door of the defendant's residence. The court entered an order granting the plaintiff's motion on October 13, 2022. The defendant now moves seeking to vacate the order on the grounds he was never adequately served with process and was never afforded adequate time in which to oppose the motion. The plaintiff counters the defendant cannot present either a reasonable excuse or any meritorious defense and the motion must be denied.
Conclusions of Law
It. is well settled that to succeed upon a motion to vacate a default the party must demonstrate a reasonable excuse for the default and a meritorious defense (Golden Mountain Income v. Spencer Gifts, LLC, 167 A.D.3d. 850, 88 N.Y.S.3d 889 [2d Dept., 2018]}. In this case the reasonable excuse presented is essentially that the summons- and motion seeing summary judgement required the defendant to respond before the time afforded pursuant to the CPLR. Thus, service was effectuated ten days, after it was served, namely on August 11, 2022. Further, pursuant to CPLR. §320(a) the defendant then had thirty days in which to appear. More importantly, the court did not enter the judgement until October 13, 2022. Thus, the defendant was afforded sufficient time in which to appear of answer or request more time and failed to do so.
However, the defendant argues that service pursuant to CPLR §308 (4.) was defective since some of the times for attempted service was improper. It is well settled that pursuant to CPT.R §308(4) the plaintiff must exercise due diligence to demonstrate that personal service or service upon someone of suitable age arid discretion could riot be made. Thus, one attempt at personal service: is insufficient (see, Markoff v. South Nassau Community Hospital, 91 A.D.2d 1064, 458 N.Y.S.2d 672 [2d Dept., 1983]). Likewise, service at the same times of the day is equally insufficient. Moreover, in Serrano v. Staropoli, 94 A.D.3d 1083, 943 N.Y.S.2d 201 [2d Dept., 2012], the court held that due diligence included trying to ascertain the business address of the party to effectuate service there. Therefore, where the affidavit from the process server fails to indicate efforts to locate defendant's business address for personal service there then service is improper (see., also., County of Nassau v. Letosky, 34 A.D.3d 414, 824 N.Y.S.2d 153 [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]), These requirements are not merely technical rules but emerges from an understanding that the purpose of serving process is to try and ensure that process is received.
In this case, the affidavit of service lists numerous times when personal service upon the defendant was attempted. One of the attempts was on a Saturday. There is insufficient evidence such service violated General Business Law §13 since that statute requires malice which has been defined as knowledge: the defendant observes and recognizes the Sabbath (see, Hirsch v. Zvi, 184 Misc.2d 946, 712 N.Y.S.2d 238 [Civil Court of the City of New York,. 2000]) . In any event, such service; was surely improper and cannot constitute a valid attempt to support the requisite attempts necessary to resort to service pursuant to CPLR §308(4). Thus, according to the affidavit of the process server there were two additional attempts at service, Thursday July 28, 2022 at 8:00 AM and Monday August 1, 2022 at 9:50 AM (see, Affidavit of Process Server [NYSCEF Doc. No. 21]). However, those attempts were both:: in the morning hours and insufficiently attempted to serve process when the defendant was home. Moreover, there, is no indication at all that service was attempted at the defendant's place of business. This is significant since the first promissory note, the mortgage and guaranty, the building loan note, the building loan mortgage and guaranty all dated September 25, 2019 all list the business address of the defendant as 4403 15th Avenue in Kings County (see, NYSCEF Doc. Nos. 4, 5, 6, 7, 8, 9). Further, the first forbearance agreement and guaranty both dated September 10, 2020 list a business address as 4403 15th Avenue in Kings County (see, NYSCEF Doc. Nos. 10, 11). Moreover, the second forbearance agreement dated June 15, 2021 also lists the business address as 4403, 15th Avenue in Kings County (see, NYSCEF Doc. No. 14).. Thus, the plaintiff was familiar- with the; business -address of the defendant and was required to attempt service at that location before resorting to alternative, service.
Therefore, concerning the defendant Zalmen Wagschal the plaintiff failed to engage in due diligence. Consequently, there was no service upon the defendant, therefore, there was never jurisdiction conferred upon him and consequently the motion seeking to vacate- the default is- granted. Further, the court has no jurisdiction over this defendant and the case cannot proceed.
However, the plaintiff shall be afforded 120 days from receipt of this order to effectuate and file proper service and proof of service (Murphy v. Hdppenstein, 279 A.D.2d 410,. 720 N.Y.S.2d 62 [1st Dept., 2001]).
So ordered.