Opinion
Index No. 707603/2019 Motion Seq. No. 1
02-10-2020
LI XIA, Plaintiff, v. WEI ZHENG, BEIBEI CUI, JOHN DOE, and XYZ CORP., Defendants
Unpublished Opinion
Motion Date: October 21,2019
HONORABLE LOURDES M. VENTURA, J.S.C.
The following numbered papers read on this motion by Defendants Wei Zheng (hereinafter "Defendant Zheng") and Beibei Cui (hereinafter "Defendant Cui"), for an Order dismissing the instant case for lack of jurisdiction and granting such other and further relief as to the Court may deem just and proper.
Papers Numbered
Notice of Motion - Affirmation - Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3
Affirmation in Opposition ......................................................... · ......... 4-6
Reply Affirmation ............................................................................ 7-8
Sur-reply................................................................................................................... 9- l 0
Upon the foregoing papers, it is ORDERED that the motion by Defendants for an Order, dismissing the instant case for lack of jurisdiction is hereby granted in part, as to Defendant Cui and denied in part, as to Defendant Zheng.
CPLR 308 governs the methods of service upon a natural person. Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (see Washington Mut. Bank v Murphy, 127 A.D.3d 1167, 1174 [2015]; Emigrant Mtge. Co., Inc. v Westervelt, 105 A.D.3d 896, 896-897 [2013]). CPLR 308 requires that service be attempted by personal delivery of the summons "to the person to be served" (CPLR 308 [1]), or by delivery "to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode" (CPLR 308 [2]). Service pursuant to CPLR 308(4), commonly known as "affix and mail" service, may only be used where personal service under CPLR 308(1) and (2) cannot be made with due diligence (see CPLR 308[4]; Deutsche Bank Nat. Tr. Co. v. White, 110 A.D.3d 759 (2013); Estate of Waterman v. Jones, 46 A.D.3d 63 (2007).
The requirement of due diligence must be strictly observed because "there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308(4)" (Kaszovitz v. Weiszman, 110 A.D.2d 117, 120, 493 N.Y.S.2d 335; see McSorley v. Spear, 50 A.D.3d 652, 653-654, 854 N.Y.S.2d 759; County of Nassau v. Letosky, 34 A.D.3d 414, 415, 824 N.Y.S.2d 153). "[D]ue diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality" (McSorley v. Spear,' 50 A,D.3d at 653, 854 N.Y.S.2d 759, citing Estate of Edward S. Waterman v. Jones, 46 A.D.3d 63, 66, 843 N.Y.S.2d 462). The due diligence requirement may be met with "a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times" (Estate of Waterman v Jones, 46 A.D.3d at 66; see Wells Fargo Bank, NA v Besemer, 131 A.D.3d 1047, 1048 [2015]).
Defendants filed the instant motion to dismiss and contend that this Court cannot exercise jurisdiction over Defendants who are out of state domiciliaries unless Defendants were properly served within the state. Defendants further contend that Plaintiff's attempted service on Defendants did not comply with CPLR 308(4), both because Defendants did not reside at the location to which Plaintiff "nailed" the summons and because Plaintiff resorted to use of the "nail and mail" method of service without first excising due diligence to otherwise serve Defendants. Defendants submit a certification from Jordan Gottheim, Esq., and the affidavits of service for the summons and verified complaint in the instant case in support of their motion to dismiss.
Plaintiff opposes Defendants' motion to dismiss and contend that they effectuated proper service over Defendants and as such, this Court maintains jurisdiction over Defendants. Plaintiff submits the process server's affidavits of service for the summons and verified complaint, fugitive (Zheng Wei) wanted for prosecution report, FedEx tracking history, a photo bearing an address "130-07 58 Avenue, Floor 2F Flushing, Queens, NY 11355 and 130-32 60th Avenue, Flushing, NY 11367" accompanied by a notarized affidavit, translating the Chinese characters into English contained in the photo, a notarized affidavit from the process server, and Plaintiff's notarized affidavit in support of their motion in opposition to Defendants' motion to Dismiss.
Here, Plaintiff alleges in their notarized affidavit, that they were personally informed by Special agent Shuangjian of Wuhan China in January 2019, that Defendants fled to the United States and that they were residing at 130-32 60 Avenue, Flushing, NY 11367 and/or 130-07 58 Avenue Floor 2, Flushing, NY 11355. In support of Plaintiff's belief of where Defendants' reside, Plaintiff submitted a photo bearing addresses "130-07 58 Avenue, Floor 2F Flushing, Queens, NY 11355 -characters in another language-130-32 60th Avenue, Flushing, NY 11367 -characters in another language-" as Exhibit "4" of their opposing papers. Plaintiff further submits a notarized affidavit from Ying Ying Wang translating the Chinese characters contained in the photo from Chinese to English.
Ying Ying Wang's affidavit reads, in pertinent part, as follows:
"Wei Zheng is a Chinese citizen. His residence is at:
130-07 58 Ave., Floor 2F
Flushing, Queens, NY 11355
and
130-32 60th A venue,
Flushing, NY 11367
I Ying Ying Wang, and a resident of Queens County New York. I am over 21 years old. I am competent to translate Chinese into English. The above is an accurate English translation of the document above marked as Exhibit 4."
The Court finds that Plaintiff had reason to believe that Defendant Zheng resided at BOOT 58 Ave., Floor 2F Flushing, Queens, NY 11355 and/or 130-32 60lh Avenue, Flushing, NY 11367. Notably, Defendant Zheng provided no evidence to rebut or refute Plaintiffs evidence.
The Court further finds that the process server's affidavits submitted by Plaintiff in the instant case, constitutes prima facie evidence of proper service (see Simonds v. Grohman, 277 A.D.2d 369 (2000) citing Wieck v. Halpern, 255 A.D.2d 438, 680 N.Y.S.2d 599; Simmons Firs/ Natl. Bank v. Mandracchia, 248 A.D.2d 375,669 N.Y.S.2d 646; Remington lnvs. v. Seiden, 240 A.D.2d 647, 658 N.Y.S.2d 696.
Defendants in the instant case only rely on their attorney affirmation and a non-party affirmation to rebut the process server's affidavits, which is insufficient to rebut the presumption of proper service. HSBC Mortg Corp. (USA) v. Hollender, 159 A.D.3d 883 (N.Y.App.Div. 2018) (an affirmation of defense counsel was submitted in support of defendant's motion was found to be insufficient to rebut the presumption of proper service). In addition, Defendants in the instant case failed to submit a sworn denial of service or swear to specific facts rebutting the statements in the process server's affidavits. Thus, Defendants failed to raise a triable issue of fact as to proper service. (See Simonds v. Grobman, 277 A.D.2d 369, 369, 716 N.Y.S.2d 692, 693 (2000)(defendants failure to submit a sworn denial of service or swear to specific facts to rebut the statements in the process server's affidavits was insufficient to raise a triable issue of fact) See also HSBC Mortg. Corp. (USA) v. Hollender, 159 A.D.3d 883 (N.Y.App.Div. 2018).
This Court would like to note that the Supreme Court is not required to direct an evidentiary hearing on the issue of whether Defendants were properly served whereas here, Defendants' failed to submit a sworn denial of receipt of service containing specific facts to refute the statements contained in the process server's affidavits (see HSBC Bank USA, Nat'l Ass'n v. Daniels, 163 A.D.3d 639 (N.Y.App.Div. 2018); Deutsche Bank Nat. Tr. Co. v. White, 110 A.D.3d 759 (2013).See also Countrywide Home Loans, Inc. v. Smith, 171 A.D.3d 858 (N.Y.App.Div. 2019).
The Court further finds that Plaintiff effectuated proper service and complied with the due diligence requirement pursuant to CPLR 308(4) as to Defendant Zheng. The affidavits of service submitted by Plaintiff reveals that the process server attempted to serve Defendant Zheng personally at 130-32 60 Avenue, Flushing, NY 11367 on Tuesday, May 21,2019 at 7:29 p.m., Thursday, May 23, 2019 at 2:20 p.m., Tuesday, May 28,2019 at 9:49 a.m. and also at 130-07 58 Avenue Floor 2, Flushing, NY 11355 on Tuesday, May 21, 2019 at 7:21 p.m., Thursday, May 23, 2019 at 2:17 p.m., and Tuesday, May 28, 2019 at 9:49 a.m. Thereafter, the Process server resorted to service pursuant CPLR 308(4) and affixed a copy of the summons and complaint to Defendants' residences and mailed another copy to the same addresses.
Here, the process server attempted to personally service Defendant Zheng three times at each of the addresses known to be Defendant Zheng's residences. The Second Department has repeatedly found that three attempts of personal service upon the defendant at their residence when Defendant could reasonably be expected to be there, on different days of the week and at different times, constitutes due diligence (See, e.g, JPMorgan Chase Bank, N.A. v. Szajna, 72 A.D.3d 902 (2d Dep't 2010) see also State of New York v. Mappa, 78 A.D.3d 926 [2d Dept.2010]; Johnson v. Waters, 291 A.D.2d 481 [2d Dept.2002]; Matos v. Knibbs, 186 A.D.2d 725 [2d Dept. 1992]; Hochhauser v. Bungeroth, 179 A.D.2d 431 [1st Dept. 1992]).
Moreover, in light of the fact that Defendant Zheng is an alleged fugitive who is wanted for prosecution in China, there is no showing of any other reasonable means whereby the chances of successful personal service could have been significantly increased Matos v. Knibbs, 186 A.D.2d 725 (2d Dept. 1992); Johnson v. Waters, 291 A.D.2d 481(2002). Further, there is no indication from Defendant Zheng that he works or that his workplace address is readily ascertainable to Plaintiff. Thus, Plaintiff is not required to attempt to serve Defendant Zheng at his workplace. See Deutsche Bank Nat. Tr. Co. v. White, 110 A.D.3d 759 (2013); JP Morgan Chase Bank, N.A. v. Szajna, 72 A.D.3d 902 (2010); HSBC Mortg. Corp. (USA) v. Hollender, 159 A.D.3d 883 (N.Y.App.Div. 2018). Therefore, the Court finds that Plaintiff effectuated proper service pursuant to CPLR 308(4) as to Defendant Zheng.
With respect to Defendant Cui, the Court does not find that Plaintiff effected proper service pursuant to CPLR 308(4). Plaintiff alleges that Defendant Zheng and Defendant Cui are married. However, Plaintiff does not provide any evidence in support that Defendant Zheng and Defendant Cui are in fact married. In addition, the evidence submitted by Plaintiff in support of their opposing papers only provide supporting information for the whereabouts of Defendant Zheng and not Defendant Cui. Plaintiff failed to provide this Court with any evidence that would lead this Court to believe that Defendant Cui is known to reside with Defendant Zheng or that Defendant Cui resided at 130-32 60 Avenue, Flushing, NY 11367 or 130-07 58 Avenue Floor 2, Flushing, NY 11355. Thus, with respect to Defendant Cui this Court finds that Plaintiff failed to effectuate proper service pursuant to CPLR 308(4).
Accordingly, Defendants' motion to dismiss for lack of jurisdiction is granted in part, as to Defendant Cui and Denied in part, as to Defendant Zheng.