Opinion
3286/18
11-26-2019
Ikenna NWACHUKWU, Plaintiff, v. NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, and Jerry Boone, in his individual capacity and in his official capacity as the Commissioner of the New York State Department of Taxation and Finance, Defendants.
Plaintiff Pro Se, Ikenna Nwachukwu, 1516 East 45th Street, Brooklyn, NY 11234 Attorney for Defendant, Letitia James, Attorney General for the State of New York, Stella Adegite, Assistant Attorney General, 28 Liberty Street, New York, NY 10005, (212) 416-8359
Plaintiff Pro Se, Ikenna Nwachukwu, 1516 East 45th Street, Brooklyn, NY 11234
Attorney for Defendant, Letitia James, Attorney General for the State of New York, Stella Adegite, Assistant Attorney General, 28 Liberty Street, New York, NY 10005, (212) 416-8359
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion of the defendants the New York State Department of Taxation and Finance (hereinafter NYSDTF), and Jerry Boone filed on September 27, 2019 under motion sequence number three for an order dismissing the complaint pursuant CPLR 3211 (a) (2), (5), (7) and (8).
Notice of Motion
Affirmation of Assistant Attorney General in support
Affirmation District Tax Attorney in support
Affirmation of defendant Jerry Boone in support
Exhibit A-L
Memorandum of Law in support
Plaintiff's response
BACKGROUND
On December 24, 2018, plaintiff commenced the instant action by electronically filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office (hereinafter KCCO). In sum and substance, plaintiff's claim is premised on NYSDTF and Jerry Boone's actions as Commissioner of NYSDTF. Plaintiff claims that the defendants by the improper and illegal use of New York State Tax Law § 171-V caused the New York State Department of Motor Vehicles to suspend the plaintiff's driver's license based on purported delinquent tax liabilities in excess of $10,000.00.
The complaint contains thirty-five allegations of fact in support of three denominated causes of action. The first is for a judgment declaring that the defendants' decision to suspend plaintiff's driver's license was unlawful. The second is for damages due to an alleged violation of the due process clause of the United States Constitution by the defendants continued suspension of the plaintiff's driver's license. The third is for damages for an alleged violation of the due process clause of the New York State Constitution Article I, § 6 § 11 by the defendants continued suspension of the plaintiff's driver's license.
By notice of motion filed on March 14, 2019, under motion sequence number one, plaintiff had previously moved pursuant to CPLR 3215 for an order seeking leave to enter a default judgment against the defendants filed (hereinafter the prior motion). By decision and order dated April 16, 2019 (hereinafter the prior order), Judge Richard J. Montelione denied the prior motion based on lack of personal jurisdiction over the defendants. In particular, Judge Montelione found that the method of service employed by the plaintiff to serve the commencement papers on the defendants did not comply with the pertinent provisions of either CPLR 308, 312-A, or 307 (2). The order directed, among other things, that the parties appear in the intake part on June 5, 2019. The order further advised that if plaintiff did not obtain jurisdiction over the defendants or seek relief regarding service by June 5, 2019, the court would consider dismissing the complaint.
LAW AND APPLICATION
The defendants have jointly sought dismissal of the complaint pursuant to CPLR 3211 (a). As relevant here, both defendants are seeking dismissal of the complaint pursuant to, among other things, CPLR 3211 (a) (8) for lack of personal jurisdiction.
Plaintiff had made a prior motion pursuant to CPLR 3215 seeking leave to enter a default judgment against the defendants. A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant's default, and the facts constituting the claim ( Glob. Liberty Ins. Co. v. Surgery Ctr. of Oradell, LLC, 153 AD3d 606, 606 [2nd Dept 2017], citing, CPLR 3215 [f] ; Fried v. Jacob Holding, Inc. , 110 AD3d 56, 59 [2nd Dept 2013] ).
By the prior order, Judge Montelione denied the plaintiff's prior motion because the court found that it lacked personal jurisdiction over the defendants. This determination was made after reviewing the affidavits of service of the commencement papers that the plaintiff submitted with the prior motion.By the prior order, the court necessarily made a finding that the method of service of the commencement papers that the plaintiff used to serve the defendants failed to obtain personal jurisdiction over them. This finding is law of the case. The doctrine of the law of the case applies only to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same questions presented in the same case ( PE-NC, LLC v. Gonzalez, 172 AD3d 1394, 1395 [2nd Dept 2019], citing , Mosby v. Parilla , 140 AD3d 1129, 1130-1131 [2nd Dept 2016] ). "The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" ( Martin v. City of Cohoes , 37 NY2d 162, 165 [1975] ; see Kaygreen Realty Co., LLC v. IG Second Generation Partners, L.P. , 116 AD3d 667, 669 [2nd Dept 2014] ). The doctrine forecloses reexamination of an issue previously determined by a court of coordinate jurisdiction absent a showing of newly discovered evidence or a change in the law (Id. ).
Service upon New York State Department on Taxation and Finance and Jerry Boone
CPLR 307 (1) provides that personal service upon the state shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state.
CPLR 307 (2) provides as follows:
Personal service on a state officer sued solely in an official capacity or state agency, which shall be required to obtain personal jurisdiction over such an officer or agency, shall be made by (1) delivering the summons to such officer or to the chief executive officer of such agency or to a person designated by such chief executive officer to receive service, or (2) by mailing the summons by certified mail, return receipt requested, to such officer or to the chief executive officer of such agency, and by personal service upon the state in the manner provided by subdivision one of this section. Service by certified mail shall not be complete until the summons is received in a principal office of the agency and until personal service upon the state in the manner provided by subdivision one of this section is completed. For purposes of this subdivision, the term "principal office of the agency" shall mean the location at which the office of the chief executive officer of the agency is generally located. Service by certified mail shall not be effective unless the front of the envelope bears the legend "URGENT LEGAL MAIL" in capital letters. The chief executive officer of every such agency shall designate at least one person, in addition to himself or herself, to accept personal service on behalf of the agency. For purposes of this subdivision the term state agency shall be deemed to refer to any agency, board, bureau, commission, division, tribunal or other entity which constitutes the state for purposes of service under subdivision one of this section.
The allegations of fact in the verified complaint pertaining to Jerry Boone unequivocally establish that he was being sued in his official capacity as the commissioner of the NYSDTF. By the prior order, the plaintiff was permitted to continue to attempt to obtain personal jurisdiction or seek relief regarding service. Plaintiff made additional attempts to serve Jerry Boone and the NYSDTF with the commencement papers and filed the affidavits of service with the KKCO . Both affidavits were served by Arlette Simmons, plaintiff's process server. The affidavit of service pertaining to Jerry Boone reflected that service was attempted pursuant to CPLR 308 (4). The affidavit of service pertaining to the NYSDTF reflected service on May 7, 2019, by personal delivery to Eleyna Walker, an individual purportedly authorized to accept service. Both affidavits of service reflected service of the commencement papers as well as additional documents denominated as "Notice of Entry of a Default Judgment" and both affidavits of service were filed with the KCCO on May 16, 2019.
The court reviewed the affidavits of service that had been filed with the KCCO to obtain the information set forth therein. The Court may take judicial notice of its own records (see Wachovia Bank, N.A. v. Otto N. Williams , 17 Misc 3d 1127 [A] [NY Sup 2007] citing Matter of Khatibi v. Weill , 8 AD3d 485 [2nd Dept 2004] ).
New York State Department on Taxation and Finance
According to the affidavit of Arlette Simmons, plaintiff's process server, service on the NYSDTF was effectuated on May 7, 2019 by personal delivery on Eleyna Walker, an individual purportedly authorized to accept service at 9 W A Harriman Campus, Albany, New York 12227. Inasmuch as Eleyna Walker is not an assistant attorney-general, the service upon the NYSDTF was not in accordance with CPLR 307 (1). CPLR 307 (2) provides two alternative methods for service on NYSDTF. One method provides for personal delivery to the chief executive officer of NYSDTF or to a person designated by such chief executive officer to receive service. The other method provides for certified mail, return receipt requested, to the officer, plus service on the State in the manner provided in CPLR 307 (1). The later method was already foreclosed by plaintiff's failure to comply with CPLR 307 (1).
Inasmuch as Eleyna Walker is not the chief executive officer of NYSDTF or a person designated by the chief executive officer of NYSDTF to receive service, service on NYSDTF was not in accordance with the first method set forth in CPLR 307 (2). Inasmuch as plaintiff did not serve NYSDTF in accordance with any method available pursuant to CPLR 307 (1) or (2), the court lacks jurisdiction over NYSDTF.
Jerry Boone
According to the affidavit of Arlette Simmons, plaintiff's process server, delivery of the commencement and other aforementioned papers was attempted on Jerry Boone at his home on Saturday, May 4, 2019, at 11:15 A.M., on Monday, May 6, 2019, at 6:32 P.M., and on Tuesday, May 7, 2019, at 8:21 A.M. After all three attempts proved unsuccessful, the process server then affixed a copy of the commencement papers and notice of entry of a default judgment to the defendant's door and mailed a copy of same to his residence (see CPLR 308 [4] ). The affidavit of service was thereafter filed with the KCCO on May 16, 2019.
It is apparent that the plaintiff was attempting personal service upon Jerry Boone pursuant to CPLR 307 (2) by attempting personal delivery upon him pursuant to CPLR 308 (4). Resorting to the affix and mail method of personal service pursuant to CPLR 308 (4) is only proper where the alternate methods of personal service provided for in CPLR 308 (1) or (2) cannot be made with due diligence ( CPLR 308 [4] ). 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) ( Coley v. Gonzalez , 170 AD3d 1107, 1108 [2nd Dept 2019] ; citing, Serraro v. Staropoli , 94 AD3d 1083, 1084 [2nd Dept 2012] ). What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality ( Coley , 170 AD3d at 1108 ]; citing, McSorley v. Spear , 50 AD3d 652 [2nd Dept 2008] ).
The process server's three attempts to personally deliver the aforementioned papers to the defendant Jerry Boone at his home, did not constitute due diligence. The attempt of service on Monday, May 6, 2019, at 6:32 P.M., and on Tuesday, May 7, 2019, at 8:21 A.M were made on a weekday, during normal business hours when it could reasonably have been expected that the defendant would either be working or be in transit to or from work ( County of Nassau v. Yohannan , 34 AD3d 620 [2nd Dept 2006], citing, Earle v. Valente , 302 AD2d 353 [2nd Dept 2003] ). The process server also failed to make genuine inquiries about the defendant's whereabouts and place of employment ( McSorley , 50 AD3d at 653—54, citing, Service of the Estate of Waterman v. Jones , 46 AD3d 63 [2nd Dept 2007] ).
Inasmuch as the Court lacks personal jurisdiction over defendants NYSDTF and Jerry Boone, that branch of the defendants' joint motion to dismiss the complaint as asserted against each of them pursuant to CPLR 3211 (a) (8) is granted. This renders academic the branches of the defendants' joint motion that seeks dismissal of the complaint as asserted against each of them pursuant to CPLR 3211 (a) (2), (5) and (7).
CONCLUSION
The branch of the notice of motion by the New York State Department of Taxation and Finance for an order dismissing the complaint as asserted against it pursuant CPLR 3211(a) (8) is granted.
The branch of the notice of motion by Jerry Boone for an order dismissing the complaint as asserted against him pursuant to CPLR 3211 (a) (8) is granted.
Inasmuch as the Court has dismissed the complaint against both defendants for lack of personal jurisdiction, the branch of the defendants joint notice of motion seeking an order dismissing the complaint pursuant to CPLR 3211 (a) (2), (5) and (7) is rendered academic.
The foregoing constitutes the decision and order of this Court.