Opinion
517541/19
12-04-2019
The PEOPLE of the State of New York BY Letitia JAMES, Attorney General of the State of New York, Petitioner, v. Ishmael OSEKRE, individually and as principal of African Food Festival, LLC, Respondent.
Petitioner: Letitia James, NYS Attorney General, By: Matthew Scott Eubank, Assistant Attorney General, NYS Office of the Attorney General, Brooklyn Regional Office, 55 Hanson Place Suite 1080, Brooklyn, NY 11217, (718) 560-2040
Petitioner: Letitia James, NYS Attorney General, By: Matthew Scott Eubank, Assistant Attorney General, NYS Office of the Attorney General, Brooklyn Regional Office, 55 Hanson Place Suite 1080, Brooklyn, NY 11217, (718) 560-2040
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition and petition of the People of the State of New York (hereinafter petitioner) for an order and judgment pursuant to Executive Law § 63 (12) and New York State General Business Law § 349 and 359 granting, among other things, injunctive relief and an accounting as asserted against Ishmael Osekre (hereinafter Osekre or "respondent").
The respondent has not appeared or responded to the petition.
Notice of petition
Verified petition
Affirmation of Assistant Attorney General in support
Exhibit A-ZA
BACKGROUND
On August 9, 2019, petitioner commenced the instant special proceeding pursuant to Executive Law § 63 (12) and General Business Law § 349 and 350 by electronically filing a notice of petition, verified petition with accompanying documents (hereinafter the commencement papers), and a request for judicial intervention (hereinafter RJI) with the Kings County Clerk's office (hereinafter KCCO).
The verified petition alleges seventy-eight allegations of fact in support of three claims. The first claims is that the respondent engaged in statutory fraud pursuant to Executive Law § 63 (12). The second is that the respondent engaged in false advertising in violation of General Business Law § 350. The third is that the respondent engaged in deceptive acts and practices in violation of General Business Law § 349.
In sum and substance, the petitioner claims that Osekre, as the sole principal of the African Food Festival LLC, engaged in repeated and persistent fraudulent, deceptive and unlawful business practices in the planning and execution of three distinct food festivals. The first was the 2016 NYC African Food Festival which took place on August 13 and 14, 2016. The second was the 2017 NYC Pizza Festival which took place on Saturday, September 9, 2017 in Brooklyn, New York. The third was the 2017 NYC Hamburger Festival which also took place on Saturday, September 9, 2017 in Brooklyn, New York. Osekre allegedly made numerous promises in his advertisements for the three aforementioned festivals and allegedly did not deliver on any of his promises. He, among other things, offered food festivals with little or no food. The petitioner seeks, among other things, injunctive relief and an accounting.
COMMENCEMENT PAPERS
Petitioner's commencement papers consist of a notice of petition, a verified petition, a memorandum of law in support, an affirmation of an Assistant Attorney General and twenty-seven annexed exhibits. Exhibit A is an affidavit of Brenda Mureith who is described as a member of the respondent's production team. Exhibit B is an affidavit of Mary Lovci, the Vice President for Global Events for the Dugger Greenhouse, regarding her failed business dealings with the respondent. Exhibit C is a copy of an advertisement pertaining to the NYC African Food Festival. Exhibit D is an affidavit of Marie Claude Mendy, the owner of Teranga restaurant in Boston Massachusetts, regarding her failed business dealings with the respondent. Exhibit E is an article written by Emma White in a publication called Food on August 15, 2016, describing how disastrous the NYC African Food Festival turned out. Exhibit F is an affidavit of Lebohang Matine, a disappointed ticket holder and attendee of the NYC African Food Festival. Exhibit G is an affidavit of Amanda Gobra, another disappointed ticket holder and attendee of the NYC African Food Festival. Exhibit H is an affidavit of Deyonka Baines, another disappointed ticket holder and attendee of the NYC African Food Festival. Exhibit I is an affidavit of Alice Matthews, another disappointed ticket holder and attendee of the NYC African Food Festival. Exhibit J is an affidavit of Kim Merejo, another disappointed ticket holder and attendee of the NYC African Food Festival. Exhibit K is an affidavit of Maya Hayes, a disappointed ticket holder and attendee of the NYC African Food Festival. Exhibit L is an affidavit of Edward Troiano, the owner of Knight Security service, regarding the respondent's fraudulent business interactions with Edward Troiano's company. Exhibit M is an affidavit of Peter Henderson, the executive director of A Form Architecture, PC, regarding the respondent's fraudulent business interactions with Peter Henderson's company. Exhibit N is a copy of three checks from the respondents Bank of America checking account. Exhibit O is an affidavit of Angel Vogel, the manager of Manhattan Beer Distributors, regarding the respondent's fraudulent business interactions with Angel Vogel's company. Exhibit P is denominated as payout sheets. Exhibit Q is a copy of an advertisement pertaining to the 2017 NYC Hamburger Festival. Exhibit R is denominated as details of the 2017 NYC Hamburger Festival. Exhibit S is an article written by Chris Perez in Metro on September 11, 2017, describing how disastrous the 2017 NYC Pizza Festival turned out. Exhibit T is an affidavit of Bridget Martin, a disappointed ticket holder and attendee of the 2017 NYC Hamburger Festival. Exhibit U is an affidavit of Kyle Ackerman, a disappointed ticket holder and attend of the 2017 NYC Pizza Festival. Exhibit V is an affidavit of Ryan Gianforte, a disappointed ticket holder and attendee of the 2017 NYC Hamburger Festival. Exhibit W is an affidavit of Jeremy Asgari, an owner of Hangry Garden, a furniture rental company, regarding the respondent's fraudulent business interactions with Jeremy Asgari's company. Exhibit X and Y are copies of a number of emails. Exhibit Z is an article written by Laura Hayes in the City Paper on March 8, 2019, describing the Blagden Alley Food Tasting event. Exhibit ZA is an affidavit of Aron Kansal, the owner of SimpleTix.com regarding his belief that the respondent used his business fraudulently to sell tickets to a number of events.
LAW AND APPLICATION
Executive Law § 63 (12) provides in pertinent part as follows:
Whenever any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business, the attorney general may apply, in the name of the people of the state of New York, to the supreme court of the state of New York, on notice of five days, for an order enjoining the continuance of such business activity or of any fraudulent or illegal acts, directing restitution and damages..., and the court may award the relief applied for or so much thereof as it may deem proper.
CPLR Article 4 sets forth the rules governing special proceedings. In particular CPLR 409 (b) provides in pertinent part that the court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised. Pursuant to CPLR 409 (b), in a special proceeding, where there are no triable issues of fact raised, the court must make a summary determination on the pleadings and papers submitted as if a motion for summary judgment were before it (see Matter of Korotun v. Laurel Place Homeowner's Assn ., 6 AD3d 710, 711 [2nd Dept 2004] citing, Matter of Friends World Coll. v. Nicklin , 249 AD2d 393 [2nd Dept 1998] ).
As a threshold matter, however, the Court must first determine whether the petitioner has obtained personal jurisdiction over the respondent. According to the allegations of fact in the verified petition, the respondent is alleged to have committed several tortious acts within the State of New York. Therefore, assuming that the respondent is an out of state domiciliary, CPLR 313 and CPLR 302 (a) (2) permits service upon him pursuant to the provision of CPLR 308.
Service of process must be made in strict compliance with statutory methods for effecting personal service upon a natural person pursuant to CPLR 308 ( Washington Mut. Bank v. Murphy, 127 AD3d 1167 [2nd Dept 2015] ; Macchia v. Russo , 67 NY2d 592, 594 [1986] ). 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 nail and mail service, may be used only where service under CPLR 308 (1) or 308 (2) cannot be made with due diligence ( Bank of America, N.A. v. Batson , 176 AD3d 771 [2nd Dept 2019] ). Nail and mail service is effected by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person ... at his or her actual place of business. The envelope must bear the legend "personal and confidential" and not indicate on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. The affixing and the mailing are to be effected within twenty days of each other; and proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later. Service shall be complete ten days after such filing ( CPLR 308 [4] ).
An examination of the affidavit of service of the commencement papers filed with the KCCO demonstrates that the petitioner attempted service upon the respondent pursuant to CPLR 308 [4]. In particular, the affidavit demonstrates that the process server made three attempts to personally serve the commencement papers upon the respondent. The first attempt was made on Tuesday, August 20, 2019 at 9:31 pm; the second was made on Friday, August 23 2019 at 7:03 a.m.; and the third was made on Thursday August 29, 2019, at 4:54 pm. Each of these attempts was made at 60 Seneca Road, New Haven, Connecticut which the process server stated was the respondent's dwelling house. The affidavit states that on August 29, 2019 at 4:54 p.m. a copy of the commencement papers was affixed to the door; and, a copy was mailed to the respondent at the aforesaid address on August 30, 2019.
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] ).
The affidavit of service was filed with the KCCO on October 18, 2019. Contrary to the requirements of CPLR 308 (4) the affidavit of service was not filed within twenty days of August 30, 2019. Furthermore, there was nothing in the record to indicate that the process server made any attempt to inquire of neighbors as to the defendant's working habits ( County of Nassau v. Yohannan , 34 AD3d 620 [2nd Dept 2006], citing, Walker v. Manning , 209 AD2d 691 [2nd Dept 1994] ).
Under these circumstances, the attempted service of the commencement papers pursuant to CPLR 308 (4) was defective (see Cancilla v. Vukosa, 112 AD3d 662 [2nd Dept 2013, citing, Walker v. Manning , 209 AD2d 691 [2nd Dept 1994] ). Consequently, the Court lacks personal jurisdiction over the respondent.
CONCLUSION
The notice of petition and petition of the People of the State of New York for an order and judgment pursuant to Executive Law § 63 (12) is denied.
The foregoing constitutes the decision and order of this Court.