Opinion
Index No. 652861/2022
07-10-2023
Carlos David Pettinari, Plaintiff, v. JMA Property Services, LLC, MELVIN JOHNSON, and CATHY JOHNSON, Defendants.
Lee & Lum, LLP, New York, NY (Robert J. Lum of counsel), for plaintiff. No appearance for defendants.
Unpublished Opinion
Lee & Lum, LLP, New York, NY (Robert J. Lum of counsel), for plaintiff.
No appearance for defendants.
Gerald Lebovits, J.
Plaintiff, Carlos David Pettinari, moves without opposition for default judgment under CPLR 3215 against defendants, JMA Property Services, LLC, Melvin Johnson, and Cathy Johnson. Plaintiff's motion is denied, and the action is dismissed, as against defendants Melvin Johnson and Cathy Johnson (individual defendants). With respect to defendant JMA Property Services, plaintiff's motion is granted in part and denied in part.
DISCUSSION
I. The Branches of Plaintiff's Motion for Default Judgment Against the Individual Defendants
Plaintiff seeks default judgment against the individual defendants. But plaintiff did not properly serve those defendants. Plaintiff's claims against those defendants must therefore be dismissed.
The individual defendants were served by the nail-and-mail method under CPLR 308 (4). (See NYSCEF Nos. 2, 3 [affidavits of service].) This method requires that a plaintiff have first attempted with due diligence to serve defendants by personal delivery or delivery to a person of suitable age and discretion. Plaintiff has not established due diligence here. According to the affidavits of service (see id.), plaintiff's process server resorted to nail-and-mail after only two unsuccessful attempts, both made on weekdays "during hours when it reasonably could have been expected that the defendant was either working or in transit to and from work." (O'Connell v Post, 27 A.D.3d 630, 631 [2d Dept 2006].) That is not sufficient. (See id.)
Plaintiff's attorney's affirmation states that following counsel's "extensive investigations into Defendants' whereabouts in Florida," plaintiff's "process serve[r] made seven attempts at the individual defendants' last known residence in Oldsmar, Florida." (NYSCEF No. 6 at ¶ 47.) But the attorney affirmation provides no further details about either counsel's investigations or the referenced service attempts. The attempts are not reflected in the process server's affidavit. And affixing process to the door of a defendant's last-known residence-as distinct from the defendant's actual "dwelling place or usual place of abode"-would not be valid service in any event. (Feinstein v Bergner, 48 N.Y.2d 234, 239 [1979].)
Additionally, nail-and-mail service is valid only if process is both affixed to the service address and mailed. (See CPLR 308 [4].) Plaintiff's affidavits of service on the individual defendants do not state that service was mailed to them. (See NYSCEF Nos. 2, 3.)
Absent valid service, this court lacks personal jurisdiction over the individual defendants. The action is therefore dismissed as against them.
II. The Branch of Plaintiff's Motion for Default Judgment Against Defendant JMA Property
With respect to defendant JMA Property, plaintiff's affidavit of service reflects that this defendant was validly served by delivery to the Secretary of State (NYSCEF No. 4); and JMA Property has not appeared. But plaintiff has provided proof of the facts supporting its claims, as CPLR 3215 (f) requires, only with respect to some of its claims, not all of them.
A party moving for default judgment may provide the necessary proof through a party affidavit or through a verified complaint that serves as the equivalent of an affidavit. (See CPLR 3215 [f].) Here, plaintiff's complaint was verified only by counsel (see NYSCEF No. 1 at 14), which is not sufficient to permit the complaint's use to support plaintiff's default-judgment motion. (See Beltre v. Babu, 32 A.D.3d 722, 723 [1st Dept 2006].)
A different rule might apply if counsel's verification were made on personal knowledge of the facts. (See Beltre, 32 A.D.3d at 723-724.) But plaintiff's counsel represents in his verification that the basis for his knowledge of the truth of the complaint's allegations is instead "discussions with the Plaintiff, as well as a review of the file maintained by my office." (NYSCEF No. 1 at 14.)
As a result, the default-judgment motion rests solely on the facts set out in plaintiff's own affidavit. (See NYSCEF No. 13.) That affidavit shows only that plaintiff is entitled to recover on his first cause of action, sounding in breach of contract, and his fourth cause of action, sounding in breach of fiduciary duty.
On the first cause of action, plaintiff seeks $28,789.86 in damages, representing the total amount, as of February 28, 2022, of funds that defendant JMA Property collected on plaintiff's behalf from tenants and was then contractually required to disburse to plaintiff. (See NYSCEF No. 13 at ¶ 10.) But the account statements submitted by plaintiff to support this claim are somewhat unclear and do not match the description of those statements in plaintiff's affidavit. (Compare NYSCEF No. 17 at 26, with NYSCEF No. 13 at ¶ 10.) This court concludes that plaintiff has shown at most an entitlement to $24,526.93, not the larger amount sought on this motion. (See NYSCEF No. 17 at 26.)
On plaintiff's fourth cause of action, plaintiff asks for "recovery of the interest and fines accrued due to Defendants' non-payment of property taxes, totaling $459.15." (NYSCEF No. 13 at ¶ 11.) Plaintiff's affidavit establishes entitlement to that sum, as well.
Plaintiff also seeks default judgment on his fifth cause of action, seeking a refund under Real Property Law § 442-E of $43,533.45 in property-management fees that he paid to JMA Property. (See NYSCEF No. 13 at ¶ 12.) But plaintiff has not established that he is entitled to that sum. Plaintiff argues that JMA Property must refund the $43,533.45 in fees because the individual defendants were not licensed real-estate brokers, as required for them to collect property-management fees. (See id.) But plaintiff's affidavit does not contain any basis to conclude that the individual defendants were not licensed real-estate brokers. The complaint and plaintiff's attorney's affirmation include representations that, if credited, would provide the necessary support to plaintiff's refund claim. But, as discussed above, those submissions are not properly before the court on this default-judgment motion.
Plaintiff also seeks an award of attorney fees, as provided for in the underlying contract. (See NYSCEF No. 14 at 6 § IX [B].) Plaintiff has shown that he is entitled to fees; but has not yet established the amount of those fees.
Accordingly, it is
ORDERED that the branches of plaintiff's motion seeking default judgment against defendants Melvin Johnson and Cathy Johnson are denied, and the action is dismissed against those defendants for lack of personal jurisdiction; and it is further
ORDERED that the branch of plaintiff's motion seeking default judgment against defendant JMA Property Services, LLC, is granted in part and denied in part, and plaintiff is awarded a judgment against JMA Property for $24,986.08, with interest on that sum at the statutory rate running from February 28, 2022, plus costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that if plaintiff does not within 30 days of entry of this order file a renewed default-judgment motion against JMA Property with respect to the claims for which default judgment is herein denied, those claims will be dismissed; and it is further
ORDERED that plaintiff may assert in any renewed default-judgment motion a claim for plaintiff's reasonable attorney fees, supported by appropriate documentation; and it is further
ORDERED that plaintiff may enter a supplemental judgment for the amount of any recovery awarded by this court on a renewed default-judgment motion/attorney-fee motion; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants by certified mail, return receipt requested, directed to their respective last-known addresses; and on the office of the County Clerk, which shall enter judgment accordingly.