Opinion
Index No. 651931/2023 Motion Seq. No. 002
09-15-2023
CREDIT EUROPE BANK (DUBAI) LTD. Plaintiff, v. BAVAGUTHU RAGHURAM SHETTY, Defendant.
Unpublished Opinion
MOTION DATE 05/23/2023
DECISION + ORDER ON MOTION
HON. JOEL M.COHEN, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 were read on this motion for SUMMARY JUDGMENT IN LIEU OF A COMPLAINT
Plaintiff Credit Europe Bank (Dubai) Ltd.'s ("CEBD") second motion in this action, and third overall, pursuant to CPLR 3213 and 5303 for summary judgment in lieu of a complaint to domesticate a foreign judgment entered in Dubai, United Arab Emirates, against Defendant Bavaguthu Raghuram Shetty ("Sherry") is, again, denied without prejudice.
On September 20, 2022, Justice Saunders denied CEBD's motion for summary judgment in lieu of a complaint against Shetty in the action bearing Index Number 656803/2021 ("Prior Action") for failure to establish service of process. CEBD discontinued the Prior Action and commenced this action for summary judgment in lieu of a complaint. CEBD filed an affirmation of service indicating that it served Shetty's counsel in another case (NYSCEF 18).
On May 9, 2023, the Court denied CEBD's first motion in this action without prejudice because it had, again, not established personal service on, and therefore personal jurisdiction over, Shetty (Credit Europe Bank (Dubai) Ltd. v Shetty, 2023 WL 3439643 [N.Y. Sup Ct, New York County 2023]). Specifically, the Court held that service on a party's attorney in another action is insufficient under CPLR 306(e) which requires a "writing admitting service by the person to be served. . ."
Service on an attorney is proper only where the attorney has appeared in the action in which service is claimed to have been admitted (CPLR 2103[b]). "Absent a formal appearance by counsel of record, serving process on a party's attorney is not sufficient to establish personal jurisdiction absent proof of the attorney's authorization" (Credit Europe Bank (Dubai) Ltd at * 1 citing Redbridge Bedford, LLC v 159 N. 3rd St. Realty Holding Corp., 175 A.D.3d 1569, 1571 [2d Dept 2019]). As previously determined by the Court, summary judgment in lieu of complaint should be denied where apparent counsel for the defendant admits service but fails to provide any proof of their authorization to accept it (Id. citing Lord Sec. Corp. v Moorer, 2021 NY. Slip Op. 33706[U], 1 [NY. Sup Ct, New York County 2021] [other citations omitted]). The Court's prior order was "without prejudice to renewal and properly serving Shetty" (Id. at *2 [citations omitted]).
In an effort to demonstrate proper service of its second motion for summary judgment in lieu of a complaint in this action, CEBD submits an affirmation of service of its counsel (NYSCEF 34) annexed to which is an affirmation of Benjamin Bianco, Esq. (NYSCEF35), whose firm represents Shetty in another action. Mr. Bianco states that he is authorized to accept service in this action but does not attach any authorization from Shetty - the person to be served -or other evidence of his authority. While the Court does not have reason to question the truthfulness of Mr. Bianco's statement, it remains insufficient to establish personal jurisdiction over Shetty.
CEBD cites two cases to support its contention that it has established proper service (Annaly CRELLC v Ashkenazy, 2021 N.Y. Slip Op. 30119[U], 4 [N.Y. Sup Ct, New York County 2021]) and Riordan v Garces, 2020 N.Y. Slip Op. 34169[U], 5 [N.Y. Sup Ct, New York County 2020]). Contrary to CEBD's argument, Annaly is inapposite because in that case "[t]he Guaranty expressly designated [counsel] as an agent for service on behalf of the Guarantor" and there is no similar designation here. Garces is inapposite because service was accepted by an attorney who had recorded an appearance in the matter and because the relevant defendant had actual knowledge that counsel was acting on its behalf in the relevant matter.
Neither case relied on by CEBD is sufficient to establish proper service on and personal jurisdiction over Shetty. Proper service is necessary to establish personal jurisdiction prior to the entry of a judgment (Avis Rent A Car Sys., LLC v Scaramellino, 161 A.D.3d 572, 572 [1st Dept 2018]). "[A]bsent proof that a defendant has designated his or her attorney as an agent for the acceptance of process, an attorney lacks the authority to accept service on the defendant's behalf (Born To Build, LLC v Saleh, 139 A.D.3d 654, 655 [2d Dept 2016] [collecting ceases]). As determined in another case denying summary judgment in lieu of a complaint, there exists no authority "where service of process is deemed sufficient to satisfy a defendants' rights to due process when no effort is made to serve the summons on the defendant, and plaintiff does not attempt service specified under the CPLR or seek court approval of service by other means" (Orix Fin. Services, Inc. v Baker, 1 Misc.3d 288, 291 [Sup Ct New York County 2003]).
Accordingly, it is
ORDERED that Plaintiff CEBD's motion is Denied without prejudice to properly serving Defendant Shetty, or obtaining a proper waiver, or moving for appropriate relief within thirty (30) days of this order.
This constitutes the decision and order of the Court.