Opinion
No. 3220/14.
08-29-2014
K.M., an Infant by his Mother and Natural Guardian Dana MOBLEY and Dana Mobley, individually, Plaintiff, v. Burlinda MOBLEY, Mercyfirst, and Charles Bullock, Defendants.
Steve Z. Gokberk, Esq., Salenger, Sack, Kimmel & Bavaro, LLP, Wodbury, for Plaintiff. Rutherford and Christie LLP, New York, for Defendant Mercyfirst. Wesley C. Glass, Esq. DeSena & Sweeney, LLP, Bohemia, for Defendant Mobley.
Steve Z. Gokberk, Esq., Salenger, Sack, Kimmel & Bavaro, LLP, Wodbury, for Plaintiff.
Rutherford and Christie LLP, New York, for Defendant Mercyfirst.
Wesley C. Glass, Esq. DeSena & Sweeney, LLP, Bohemia, for Defendant Mobley.
Opinion
FRANCOIS A. RIVERA, J.
By order to show cause filed on April 16, 2014, under motion sequence number one, K.M., an infant by his mother and natural guardian Dana Mobley and Dana Mobley individually, (hereinafter jointly the plaintiffs) have moved for an order: (1) granting permission to effect expedient service of the summons and verified complaint upon Charles Bullock (hereinafter Bullock) pursuant to CPLR 308(5) ; and (2) granting an extension of time to serve him pursuant to CPLR 306–b.
No one has submitted opposition to the plaintiffs' motion.
BACKGROUND
On March 4, 2014, plaintiffs commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office.
Plaintiff Dana Mobley is the mother of K.M. and the daughter of defendant Burlinda Mobley. On February 19, 2013, Dana Mobley moved out of her mother's residence located at 121–26 Milburn Street, St. Albans, New York 11413 (hereinafter the subject premises). On February 24, 2013, Mercyfirst, a foster care agency, placed Bullock, a 15 year old foster child, to reside at the subject premises with Burlinda Mobley as the foster parent.
On March 3rd, 11th, and 15th of 2013, Dana Mobley left her four year old child K.M., with her mother while she went to work and school. On March 15, 2013, Bullock sexually assaulted K.M., at the subject premises. Dana Mobley learned that Bullock was taken to South Oaks Hospital after the assault.
The background information is obtained from Dana Mobley's affidavit, annexed as exhibit A, and is presented for context and not as findings of fact.
MOTION PAPERS
Plaintiffs' motion papers consist of an order to show cause, an emergency affirmation of their counsel, their attorney's affirmation in support of the motion and five annexed exhibits labeled A through E. Exhibit A is an affidavit by Dana Mobley, sworn to on March 4, 2014. Exhibit B is an affidavit of Salvatore Marino, a private investigator, sworn to on February 10, 2014. Exhibit C is an affidavit of Craig Eisenberg, a process server, sworn to on March 5, 2014. Exhibit D is described as a United States Post Office Postal Memo dated February 10, 2014. Exhibit E is an affidavit of John L. Hudak, a process server, sworn to March 5, 2014.
Burlinda Mobley has filed an affirmation in partial support of the instant motion. If the court grants the plaintiffs permission to use expedient service, Burlinda Mobley seeks permission to serve cross claims on Bullock using the same method of expedient service.
LAW AND APPLICATION
CPLR 2214(c) requires the moving party to furnish to the court all other papers not already in the possession of the court necessary to the consideration of the questions involved. Contrary to this requirement, plaintiffs did not annex a copy of the summons and complaint to the instant motion. Nor did they state whether they had effectuated service of the summons and complaint on defendants Burlinda Mobley or Mercyfirst. Failure to annex the pleadings is a procedural defect authorizing but not mandating denial of the motion without prejudice.
Extending Time to Serve Bullock pursuant to CPLR 306–b
An action is commenced by filing a summons and complaint (CPLR 304 [a] ). Service of the summons and complaint shall be made within one hundred twenty days after the commencement of the action (CPLR 306–b ). 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 (Wilson v. City of New York, 118 AD3d 983, 984 [2nd Dept 2014] ).
Good cause requires a threshold showing that the plaintiff made reasonably diligent efforts to make timely service (Bumpus v. New York City Transit Authority, 66 AD3d 26 at 31 [2nd Dept 2009] ). Good cause will not exist where a plaintiff fails to make any effort, or at least a reasonably diligent effort, at service (Id. at 32,citing Valentin v. Zaltsman, 39 AD3d 852 [2nd Dept 2007] ). By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (Id. at 32, citing Greco v. Renegades, Inc., 307 A.D.2d 711, 712 [4th Dept 2003] ).
The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their determinations, may consider the presence or absence of diligence, along with other factors (Id. at 32, citing Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105 [2001] ). The interest of justice standard is broader than the good cause standard, as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant standard (Id. citing, Mead v. Singleman, 24 AD3d 1142, 1144 [3rd Dept 2005] ).
In the instant matter, the summons and verified complaint was filed with the Kings County Clerk's office on March 4, 2014. The plaintiffs allege that Bullock cannot be located and that it is therefore necessary to seek the court's permission to effectuate service upon him, utilizing an expedient service method and an enlargement of time to do so.
The affidavit of Dana Mobley and the affidavits of her investigator and process servers demonstrate that Bullock no longer resides at the subject premises and that they could not locate him. The efforts the plaintiffs made to locate him establishes that their inability to serve him was based on factors outside of their control. Therefore, the court finds good cause to extend the plaintiffs time to serve him (Greco v. Renegades, Inc., 307 A.D.2d 711, 712 [4th Dept 2003] ).
CPLR 308(5) Request For Expedient Service Upon Defendant Bullock
The plaintiffs have suggested four methods of effectuating service upon Bullock pursuant to CPLR 308(5). The first three suggestion are to serve Bullock by regular mail addressed to one of three locations. The first location is the subject premises which was Bullock's last known address. The second is to Mercyfirst, the foster care agency that placed Bullock in Burlinda Mobley's home. The third is to the New York City Administration for Children's Services, the agency that is purported to have supervised Bullock after he was released from South Oaks Hospital. The final suggested method of service is to serve Bullock by publication in two local newspapers, at least once in each of four successive weeks.
“Although the statute itself imposes no limits on the court's discretion in fashioning a method of service, due process requires that the method be “reasonably calculated, under all the circumstances, to apprise” the defendant of the action (Mullane v. Central Hanover Bank & Trust Co, 339 U.S. 306, 314 [1950] ) ” (Vincent C. Alexander Practice Commentaries, McKinney's Cons.Law of NY, Book 7B, CPLR 308:6, Court–Ordered Service at 210–211).
CPLR 309(a) pertains specifically to personal service requirements upon an infant and provides in pertinent part as follows:
(a) Upon an infant. Personal service upon an infant shall be made by personally serving the summons within the state upon a parent or any guardian or any person having legal custody or, if the infant is married, upon an adult spouse with whom the infant resides, or, if none are within the state, upon any other person with whom he resides, or by whom he is employed. If the infant is of the age of fourteen years or over, the summons shall also be personally served upon him within the state.
“To help insure protection of the infant's interest, an adult must be personally served on behalf of the infant. If the infant is of the age of 14 years or over, personal service must also be made on the infant. The failure to make dual service when the infant is 14 years old is a jurisdictional defect (Randall v. Randall, 12 Misc.2d 468 [Sup. Ct Bronx Co 1958] )” (Vincent C. Alexander Practice Commentaries, McKinney's Cons.Law of NY, Book 7B, CPLR 309:1, Service Upon Infants at 330–331).
CPLR 105(j) defines an infant as a person who has not attained the age of eighteen years. Social Services Law § 371(19) defines foster child as any person, in the care, custody or guardianship of an authorized agency, who is placed for temporary or long-term care. Plaintiff's papers demonstrate that in February of 2013, Bullock was a 15 year old foster child.In order to effectuate service on Bullock in compliance with CPLR 309(a) plaintiffs are required to serve the summons upon Bullock personally and to also personally serve his parent, guardian or any person having legal custody over him.
Plaintiffs' motion papers do not demonstrate that they made any effort to determine the identity of Bullock's parent, guardian or person having custody over him. Instead their papers show that all of their efforts were limited to locating the whereabouts of Bullock. CPLR 308(5) vests a court with the discretion to direct an alternative method of service of process when it has determined that the methods set forth in CPLR 308(1), (2) and (4) are impracticable (see Home Fed. Sav. Bank v. Versace, 252 A.D.2d 480 [2nd Dept 1998] ). Although the impracticability standard is not capable of easy definition it does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4) nor make an actual showing that service has been attempted pursuant to CPLR 308(1), (2) and (4) (see In re Kaila B., 64 AD3d 647, 648 [2nd Dept 2009] ; citing, Home Federal Sav. Bank v. Versace, 252 A.D.2d 480 [2nd Dept1998] ).
Plaintiffs have submitted, among other things, the affidavit of a Salvatore Marino, a private investigator, to show that service upon Bullock pursuant to CPLR 308(1), (2) and (4) is impracticable. Mr. Marino swore that he conducted a social security trace, a name search with the New York State Department of Motor Vehicles, a sex offender search, a New York State Department of Correction inmate search, a social media search and a telephone directory search. After completing those searches he averred that he was unable to locate Bullock.
Mr. Marino's name search with the New York State Department of Motor Vehicles, sex offender search, and New York State Department of Correction inmate search are methods more appropriate to locate an adult but have no practical utility in locating a 15 or 16 year old infant. Bullock is too young to own or register a car or to have a driver's license. He is also too young to be an inmate in an adult correctional facility or a registered sex offender.
A more logical place to begin to locate Bullock would be to ask Burlinda Mobley and her contact person from Mercyfirst where he might be. Bullock is too young to be emancipated and is probably in the custody of either a New York State or New York City governmental entity. He is also probably still a student. Plaintiffs' search should include the New York City Board of Education, the New York City Administration of Children's Services, and the New York State Office of Children and Family Services. It would also be reasonable and appropriate for the plaintiffs to use all the disclosure devices available in Article 32 of the CPLR to obtain this information if Burlinda Mobley, Mercyfirst and the aforementioned government entities will not cooperate voluntarily.
The subject premises was Bullock's last known residence but it is no longer his actual dwelling place or usual place of abode so as to allow for service pursuant to Subdivisions (2) or (4) of CPLR 308 (Franklin v. Winard, 189 A.D.2d 717 [1st Dept 1993]citing, Feinstein v. Bergner, 48 N.Y.2d 234 [1979] ). Plaintiffs' motion papers demonstrate that they have made some effort to obtain information regarding Bullock's current residence through ordinary means and it has proven ineffectual (Id. ).
Although these facts would normally be sufficient to demonstrates that service under CPLR 308(1), (2) or (4) would be impracticable, in light of the unique circumstances of Bullock's infancy and foster care status, the court finds that the plaintiffs have not yet met their burden for expedient service.
CONCLUSION
Plaintiffs motion for an order pursuant to CPLR 306–b extending their time to serve Bullock is granted. Plaintiffs are granted an extension to February 27, 2015, to serve Bullock in accordance with CPLR 309(a).
Plaintiffs motion for an order pursuant to CPLR 308(5) permitting expedient service upon Bullock is denied without prejudice. Plaintiffs should continue their search for Bullock in accordance with this decision and order.
The foregoing constitutes the decision and order of this Court.