Opinion
No. 2021-02617 Index No. 623041/18
05-03-2023
Angelo Prego, appellant, v. Matthew Bartkowski, respondent.
The Celestin Firm, PLLC, New York, NY (Scottie Celestin of counsel), for appellant. Gentile & Tambasco, Melville, NY (Patricia McDonagh of counsel), for respondent.
The Celestin Firm, PLLC, New York, NY (Scottie Celestin of counsel), for appellant.
Gentile & Tambasco, Melville, NY (Patricia McDonagh of counsel), for respondent.
ANGELA G. IANNACCI, J.P. CHERYL E. CHAMBERS JOSEPH A. ZAYAS WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Linda Kevins, J.), dated February 25, 2021. The order denied the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment and granted that branch of the defendant's cross-motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured on December 6, 2015, while a passenger in a vehicle driven by a nonparty, when that vehicle was struck in the rear by a vehicle driven by the defendant. The plaintiff filed a summons and complaint on November 26, 2018. The complaint identified the defendant as a resident of Nassau County, and provided an alleged address for the defendant in Farmingdale (hereinafter the Farmingdale address). According to the process server's affidavit, service of the summons and complaint upon the defendant at an apartment in Brooklyn (hereinafter the Brooklyn address) was attempted on four occasions on weekdays, before the process server affixed the summons and complaint to the door at the Brooklyn address on January 21, 2019, and mailed it to that address. The affidavit identifies the Brooklyn address as a "residence," but does not recite any efforts to confirm or to ascertain the defendant's actual place of business, dwelling place, or usual place of abode.
On October 13, 2020, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment. The plaintiff submitted the process server's affidavit of service in support of the motion. The defendant opposed the plaintiff's motion, and cross-moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. The defendant submitted an affidavit in which he denied having been served with the summons and complaint. He stated that at the time of the accident, he lived at the Farmingdale address. According to the defendant, at the time of attempted service upon him he was living in Maspeth. He further claimed he had not resided at the Brooklyn address since prior to the subject accident in 2015. The Supreme Court denied the plaintiff's motion for leave to enter a default judgment and granted that branch of the defendant's cross-motion which was to dismiss the complaint based upon lack of personal jurisdiction. The plaintiff appeals.
As an initial matter, the plaintiff's contention that the process server first tried to serve the defendant at the Farmingdale address is improperly raised for the first time on appeal and refers to matter dehors the record, and his contention that the defendant is attempting to evade service is improperly raised for the first time on appeal, and therefore these contentions are not properly before this Court (see Ottey v Maya Assur. Co., 205 A.D.3d 1043, 1045; see generally New York City Economic Dev. Corp. v GCC, LLC, 209 A.D.3d 661, 663; Listwon v 500 Metro. Owner, LLC, 188 A.D.3d 1028, 1031).
Service pursuant to CPLR 308(4) may be used only where service pursuant to CPLR 308(1) or (2) cannot be made with "due diligence" (CPLR 308[4]; see Estate of Waterman v Jones, 46 A.D.3d 63, 65). "The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received" (Gurevitch v Goodman, 269 A.D.2d 355, 355; see Matter of Ferrera v Serrano, 189 A.D.3d 1230, 1231).
Here, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) (see Faruk v Dawn, 162 A.D.3d 744, 745; Prudence v Wright, 94 A.D.3d 1073, 1074). In particular, the process server did not establish through the affidavit that the defendant could reasonably be expected to be at the Brooklyn address at the times of attempted service, that it was the defendant's residence or usual place of abode, or that the process server attempted service at the defendant's place of employment (see Matter of Ferrera v Serrano, 189 A.D.3d at 1231; Faruk v Dawn, 162 A.D.3d at 745; Prudence v Wright, 94 A.D.3d at 1074). Accordingly, the Supreme Court properly denied the plaintiff's motion for leave to enter a default judgment, and properly granted that branch of the defendant's cross-motion which was to dismiss the complaint for lack of personal jurisdiction (see Faruk v Dawn, 162 A.D.3d at 745-746).
The plaintiff's remaining contention is academic in light of the foregoing, and in any event is without merit (see CPLR 3215[f]; First Franklin Fin. Corp. v Alfau, 157 A.D.3d 863, 865).
IANNACCI, J.P., CHAMBERS, ZAYAS and FORD, JJ., concur.