Opinion
CV-453-15/CO
05-31-2016
Niagara Mohawk Power Corp. d/b/a National Grid, Plaintiff, v. Sabrina Wheeler, Defendant. Niagara Mohawk Power Corp. d/b/a National Grid Plaintiff, v. Ashley Just Defendant. Index No. CV-192-15/CO
P. Scheider & Associates, PLLC Patricia Schneider Attorney for Plaintiff
P. Scheider & Associates, PLLC Patricia Schneider Attorney for Plaintiff Thomas Marcelle, J.
Plaintiff National Grid moves the Court for a default judgment against Defendants Ms. Wheeler and Ms. Just. Further, National Grid seeks an order to allow the City Marshall to enter upon Wheeler's and Just's residences, to seize gas and electric meters and to return the meters to National Grid. The matter was argued on April 4, 2016. Neither Wheeler nor Just appeared.
CPLR 3215[f] governs default judgments in a situation where, as here, a defendant has failed to appear. CPLR 3215[f] requires that a plaintiff prove four elements to receive a default judgment: (1) proper service of the initiatory papers; (2) proof of mailing of the notice requirement by CPLR 3215[g][3]; (3) the defendant is in default and (4) the facts constituting the plaintiff's claim.
The dispositive issue in this case is whether National Grid properly served the Summons and Complaint in accordance with CPLR 308[4]. National Grid has submitted affidavits to establish lawful service. The Court takes the allegations contained therein as true. Accordingly, the Court finds that National Grid attempted to serve Wheeler at 58 White St. on Friday, August 7, 2015 at 4:34 p.m.; on Saturday, August 8, 2015 at 1:03 p.m. and on Tuesday, August 11, 2015 at 8:19 p.m. On August 11, 2015 National Grid affixed the Summons and Complaint on the apartment door at 58 White St. On August 18 the same was mailed to Wheeler at the White St. address. Likewise, National Grid attempted to serve Just at 19 Church St. on three separate occasions — Wednesday, April 29, 2015 at 10:00 a.m., Thursday, April 30, 2015 at 7:00 p.m. and Saturday, May 2, 2015 at 12:45 p.m. On May 2, 2015 the Summons and Complaint were affixed to the Church St. door and the follow-up mailing was accomplished two days later.
The Court must review the validity of plaintiff's service of the Summons and the Complaint under CPLR 3215[f]. However, it always places the Court in a difficult position to transition from adjudicating disputes raised by opponents and becoming an inquisitor where the Court must inspect one party's submission for defects and failures in the absence of any adversarial objection. Nonetheless, given that the service of the complaint, the first prong of CPLR 3215[f], guards the grand constitutional principle of due process and given that this principle is so fundamental that the Court lacks jurisdiction without proper service.
The question is whether these facts constitute valid service under the affix and mail provision codified in CPLR 308[4]. The affix and mail service provision may be employed only "where service under paragraphs one [personal service] and two [deliver and mail] cannot be made with due diligence ." CPLR 308[4] (emphasis supplied). Thus the present issue turns, as legal matters so often do, on the precise meaning of an amorphous term like due diligence. Thus, unsurprising is the sad revelation that "[t]he New York Supreme Court Appellate Divisions diverge on their interpretations of what constitutes due diligence" ( Serrano v. New York State Dep't of Envtl. Conservation, 2015 WL 757268, at *5 [NDNY 2015]).
National Grid argues that service on Wheeler and Just complies with CPLR 308[4]. In particular, that three attempts on three different days at three different times constitutes due diligence. This argument has some force. The Second Department has repeatedly found that three attempts of personal service upon the defendant at her residence when the defendant could reasonably be expected to be there, on different days of the week and at different times, constitutes due diligence (see, e.g., State v. Mappa, 78 AD3d 926, 926 [2d Dept. 2010]; JPMorgan Chase Bank, N.A. v. Szajna, 72 AD3d 902, 903 [2d Dept. 2010); Lemberger v. Khan, 18 AD3d 447 [2d Dept. 2005]; Johnson v. Waters, 291 AD2d 481 [2d Dept. 2002]; Rodriguez v. Khamis, 201 AD2d 715 [2d Dept. 1994]).
The Second Department cases provide comprehensible guidance for practitioners. The most satisfying rule to adopt from a lawyer's prospective is that three attempts on three different days at three various times equates to due diligence. This rule of three holds the virtue of efficiency and certainty.
While a fixed rule is enticing, the Court rejects such a rule and rejects cases like Mappa, Szajna, Lemberger, Johnson and Rodriguez where the rule finds resonance. The reason is that receipt of the summons and the complaint by a defendant represents the conception point of due process. Upon service of these initiatory papers, the defendant obtains notice that the plaintiff has engaged the government (via the judiciary) in an effort to deprive a person of property and the defendant is provided a date, time and manner to oppose the deprivation. To the extent that a party chooses not to avail itself of a response, the ensuing consequences are a product of choice not ignorance. Consequently since service contains a constitutional dimension, the Court believes that due diligence refers to the quality of the effort to effect personal service, not the frequency of attempts.
The Third Department, in a trio of cases, which when read together, provides illuminating instruction. First, in Maines Paper & Food Serv., Inc. v. Boulevard Burgers Corp., 52 AD3d 1150 [3d Dept. 2008], plaintiff unsuccessfully attempted service at defendant's residence on five separate occasions at various times. During one of these endeavors, a neighbor confirmed that the defendant lived at the address where service was being attempted. In addition to the neighbor, plaintiff also learned, from one of defendant's employees, that defendant was residing where attempts to service were being made. Thus, in Maines, the Appellate Division held that the plaintiff's efforts satisfied the due diligence standard.
Likewise in State Higher Educ. Servs. Corp. v. Sparozic, 35 AD3d 1069, 1071-72 [3d Dept. 2006], the Third Department upheld service, albeit describing the case as a close one. In Sparozic, plaintiff attempted service on the defendant at her residence on three different weekdays at different times over a two week period. Further, the process server confirmed defendant's address by speaking to a neighbor. Finally, in State. Higher Educ. Servs. Corp. v. Upshur, 252 AD2d 333, 337 [3d Dept. 1999], plaintiff attempted service three different days at various times and also spoke with a neighbor who verified the defendant's address. The Court validated service holding that plaintiff made a sincere effort to catch the defendant at his residence rather than in transit.
Although all similar to the fact pattern presented here, an examination reveals that Maines, Sparozic and Upshur are distinguishable. A thread of commonality runs through the three cases — some type of independent verification by a third party source of the defendant's address. Without National Grid taking this step to ensure that it was attempting to serve the defendants at their correct residences, the Court is unable to find that National Grid exercised due diligence. Consequently, without due diligence, the affix and mail service is not permitted under CPLR 308[4]. Therefore, service is defective. As a result, the Court lacks personal jurisdiction over the Defendants Wheeler and Just (Rosenberg v. New York State Bd. of Regents, 2 AD3d 1003 [3d Dept. 2003]; cf. Martocci v Bowaskie Ice House, LLC, 31 AD3d 1021, 1022 [3d Dept. 2006] (recognizing that a court has the inherent "authority to sua sponte dismiss plaintiffs' complaint upon their motion for a default judgment")).
Moreover, there are additional factors present in this case that bear the indicia of improper service. In Wheeler's case, Plaintiff's efforts were confined to knocking on a door at three different times over a four day span in August. It would not be atypical for a person to be away for a brief interval during the summer. Thus, even if plaintiff had made independent verification of the address, the time span was too abbreviated for the Court to conclude that due diligence was exercised.
Just's case has an additional distinguishing fact as well. On March 9 and on March 30, 2016, the Clerk of Cohoes City Court mailed notification of the argument date to Defendant Just at the address indicated by the Complaint at 19 Church St. However, the United States Postal Service returned the correspondence back to the Court as undeliverable.
The Court understands that personal service cannot always be accomplished, especially where a defendant is consciously avoiding service; and indeed, it would be unfair to permit a defendant to escape justice by dodging service. Here however, the heart of National Grid's problem is that it employed a formulaic method of service. For the reasons provided above, the Court finds that Plaintiff failed to make proper service of the Summons and the Complaint under CPLR 308[4]. Therefore, it is
ORDERED that Plaintiff's motion is denied; and it is further
ORDERED that the case is dismissed without prejudice for lack of personal jurisdiction over Defendant Wheeler and Defendant Just.
The foregoing constitutes the Decision and Order of the Court. Dated: May 31, 2016 Cohoes, New York _____________________ Thomas Marcelle City Court Judge