Opinion
4854, 653997/13.
10-31-2017
Eyal ZABARI, Plaintiff–Respondent, v. Doron ZABARI, Defendant–Appellant.
Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), for appellant. Callagy Law, PC, New York (Michael J. Smikun of counsel), for respondent.
Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), for appellant.
Callagy Law, PC, New York (Michael J. Smikun of counsel), for respondent.
ACOSTA, P.J., MANZANET–DANIELS, GISCHE, KAPNICK, KAHN, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about July 22, 2016, which granted plaintiff's motion to confirm the report of a special referee, made after a traverse hearing, concluding that service was properly made, and denied defendant's cross motion to reject the report and dismiss the complaint for lack of personal jurisdiction, unanimously affirmed, with costs.
The special referee's conclusion that plaintiff met his burden of proving proper service pursuant to CPLR 308(2) (see Persaud v. Teaneck Nursing Ctr., 290 A.D.2d 350, 351, 736 N.Y.S.2d 367 [1st Dept. 2002] ) was "substantially supported by the record" ( Poster v. Poster, 4 A.D.3d 145, 145, 771 N.Y.S.2d 635 [1st Dept.2004], lv. denied 3 N.Y.3d 605, 785 N.Y.S.2d 21, 818 N.E.2d 663 [2004] ). Plaintiff's proof consisted of the process server's affidavit and testimony, as well as videos of him making service and testimony of the videographer. The referee found the witnesses' testimony to be credible, and defendant, who offered no evidence in opposition, shows no basis for rejecting the credibility determinations, made after the referee had "an opportunity to see and hear the witnesses and to observe their demeanor" (id. ).
Contrary to defendant's contention, the evidence amply supported the referee's finding that the documents served were in fact the summons and complaint, and that the addresses to which delivery and mailing were directed were in fact defendant's residence and place of business. Further, the evidence supports the finding that delivery was properly made by placing the papers in the "general vicinity" of defendant's doorman after he denied the process server access (see Bossuk v. Steinberg, 58 N.Y.2d 916, 918, 460 N.Y.S.2d 509, 447 N.E.2d 56 [1983] ; Charnin v. Cogan, 250 A.D.2d 513, 518, 673 N.Y.S.2d 134 [1st Dept.1998] ; Duffy v. St. Vincent's Hosp., 198 A.D.2d 31, 31, 603 N.Y.S.2d 47 [1st Dept.1993] ).
Because the documents were mailed to defendant's residence (in addition to his place of business), plaintiff was not required to send them by first class mail, and the use of certified mail was sufficient (see CPLR 308[2] ; Cohen v. Shure, 153 A.D.2d 35, 37–38, 548 N.Y.S.2d 696 [2d Dept.1989] ). The affidavit of service reflected that the mailing envelope sent to defendant's business address bore the requisite external markings (see CPLR 308[2] ; Olsen v. Haddad, 187 A.D.2d 375, 375–376, 590 N.Y.S.2d 96 [1st Dept.1992], lv. denied 81 N.Y.2d 707, 597 N.Y.S.2d 937, 613 N.E.2d 969 [1993] ; Broomes–Simon v. Klebanow, 160 A.D.2d 973, 973, 554 N.Y.S.2d 695 [2d Dept.1990] ), and no evidence was submitted to the contrary.
The fact that the process server was not licensed would not invalidate service, even if a license was required ( City of New York v. VJHC Dev. Corp., 125 A.D.3d 425, 426, 2 N.Y.S.3d 453 [1st Dept.2015] ; see also Administrative Code of City of N.Y. §§ 20–403, 20–404). We have considered defendant's remaining arguments and find them unavailing.