Opinion
Index No. 654376/2021
03-17-2022
SAGE REALTY CORPORATION, Plaintiff, v. The WALLACK FIRM, P.C. and Robert Wallack, Defendants.
Kucker Marino Winiarsky & Bittens, LLP, New York, NY (Lisa Y. Faham-Selzer and Rafael D. Dayan of counsel), for plaintiff. Jamie Andrew Schreck, P.C., New York, NY (Jamie Schreck of counsel), for defendants.
Kucker Marino Winiarsky & Bittens, LLP, New York, NY (Lisa Y. Faham-Selzer and Rafael D. Dayan of counsel), for plaintiff.
Jamie Andrew Schreck, P.C., New York, NY (Jamie Schreck of counsel), for defendants.
Gerald Lebovits, J. This is a landlord-tenant action for unpaid rent brought under a lease and guarantee by the landlord, Sage Realty Corporation, against the tenant, the Wallack Firm, P.C., and the guarantor, Robert Wallack. Sage Realty now moves for default judgment against defendants under CPLR 3215. Defendants oppose the motion on the ground that Sage Realty's service of the initial pleadings in the action was invalid, depriving this court of personal jurisdiction. Sage Realty's motion is denied, and the action is dismissed, as to defendant Wallack Firm, P.C. Sage Realty's motion as to defendant Robert Wallack is held in abeyance pending a traverse hearing.
DISCUSSION
As an initial matter, Sage Realty argues that this court should disregard defendants’ opposition papers, because they were concededly filed after the motion's return date. This court disagrees. Defendants filed their opposition papers only eight days late; and submitted an affirmation of their counsel representing that this tardiness resulted from a paralegal's failure to file timely papers that had been completed prior to the filing deadline. Additionally, this court has considered the reply papers filed by plaintiff in response to defendants’ untimely opposition. (See NYSCEF Nos. 23-26.) This court therefore exercises its discretion under CPLR 2001 and CPLR 2004 to consider defendants’ opposition notwithstanding its having been filed after the return date.
This representation is supported by, among other things, the fact that the date Robert Wallack's affidavit was notarized matches the date counsel identified as when he had given defendants’ opposition papers to the paralegal for filing. (Compare NYSCEF No. 22 at 2-3, with NYSCEF No. 20 at 4.)
To obtain default judgment under CPLR 3215, a movant must show proper service on the assertedly defaulted party. Sage Realty has not established on this record that it properly served either defendant. The record shows instead that service on the Wallack Firm was invalid, and that a material dispute of fact exists about service on Robert Wallack individually.
1. Sage Realty's affidavit of service reflects that it served the Wallack Firm by delivery of the papers into the hands of a man named Mike Mora, apparently a receptionist at the office space used by the firm (followed up by a mailing). (See NYSCEF No. 3 at 1-2.) In opposition, the Wallack Firm contends that Mora was not a firm employee and was not authorized to accept service on behalf of the firm. (See NYSCEF No. 20 at 2-3.) Sage Realty does not dispute this contention. Instead, it claims that it properly served the Wallack Firm through delivery of the papers to Mora plus a follow-up mailing because, under CPLR 311 and Business Corporation Law § 306, this method of service assertedly constituted proper service on Robert Wallack in his capacity as the Wallack Firm's registered agent. (See NYSCEF No. 23 at 5-6.)
Sage Realty does not, however, identify any evidence in the record that Robert Wallack is, or appeared to be, the registered agent of the Wallack Firm for service purposes. Sage Realty relies on the firm's Department of State registration information. (See NYSCEF No. 23 at 25.) But that registration lists Robert Wallack only as the firm's principal , leaving blank the entry for "registered agent." (See NYSCEF No. 26 at 1.) Leave-and-mail service of two sets of papers on Robert Wallack thus did not constitute service also on his law firm. Absent proper service, this court lacks personal jurisdiction over the Wallack Firm. 2. With respect to Robert Wallack individually, Sage Realty contends that it validly served him through leave-and-mail service under CPLR 308 (2) by delivery to the receptionist, Mora, plus follow-up mailing. (See NYSCEF No. 3 at 1.) Wallack provides no reason to doubt that Mora is a person of suitable age and discretion for purposes of CPLR 308 (2). Instead, he argues that the service address was not his "actual place of business," as the statute requires. (See NYSCEF No. 20 at 3-6.) Wallack asserts that he instead used the service address only as a temporary maildrop for his law firm while he and other firm employees were working from home. (See id. at 4-6.)
If credited, this assertion would defeat the validity of service: An address qualifies as a person's actual place of business for purposes of CPLR 308 (2) only if the person is "physically present with regularity" at the address and is "shown to regularly transact business at that location." ( 1136 Realty, LLC v. 213 Union St. Realty Corp. , 130 A.D.3d 590, 591, 12 N.Y.S.3d 294 [2d Dept. 2015] [internal quotation marks omitted].) It is not sufficient, as Sage Realty contends (see NYSCEF No. 23 at 15, 18), that the Wallack Firm P.C. used the service address for purposes of receiving mail and listed it publicly as a mailing address. Nor does Wallack's secretary's having visited the address "approximately every two weeks to retrieve the mail" (NYSCEF No. 20 at 6) establish either that Wallack himself was present at that address regularly or that he regularly transacted business there. Wallack's affidavit in opposition to the motion for default judgment raises a material dispute of fact about the validity of service that requires a traverse hearing.
Accordingly, it is
ORDERED that the branch of Sage Realty's motion under CPLR 3215 for default judgment against the Wallack Firm, P.C. is denied, and the action is dismissed as against the Wallack Firm for lack of personal jurisdiction, with costs and disbursements to be taxed by the Clerk upon the submission of an appropriate bill of costs at the close of the case; and it is further
ORDERED that the branch of Sage Realty's motion under CPLR 3215 for default judgment against Robert Wallack individually is held in abeyance pending a traverse hearing on the validity of service on Wallack.