Opinion
13069 Index No. 653096/17 Case No. 2019-05558
02-09-2021
EROS INTERNATIONAL PLC, Plaintiff–Respondent, v. MANGROVE PARTNERS, et al., Defendants, Manuel Asensio, Defendant–Appellant.
The Cotter Law Group, Manhasset (Scott B. MacLagan of counsel), for appellant. Levine Lee LLP, New York (Chad P. Albert of counsel), for respondent.
The Cotter Law Group, Manhasset (Scott B. MacLagan of counsel), for appellant.
Levine Lee LLP, New York (Chad P. Albert of counsel), for respondent.
Renwick, J.P., Kern, Mazzarelli, Oing, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered November 21, 2019, which, after a traverse hearing, granted plaintiff's motion for a default judgment against defendant Manuel Asensio, unanimously affirmed, with costs. As counsel for defendant appeared and contested entry of the default judgment, the motion was not granted on default, and the order is appealable (see 114 W. 26th St. Assoc. v. Fortunak, 22 A.D.3d 346, 801 N.Y.S.2d 895 [1st Dept. 2005] ; Schlain v. Women's Radiology, 305 A.D.2d 173, 759 N.Y.S.2d 67 [1st Dept. 2003] ; Dankovich v. Weisinger, 305 A.D.2d 105, 758 N.Y.S.2d 334 [1st Dept. 2003] ).
Plaintiff established by a preponderance of the evidence that it properly served defendant with process and therefore that the court had jurisdiction over him. The court properly admitted the affidavits of service as prima facie evidence of service, based on its reasonable determination that the process server, Corey Guskin, could not, with an exercise of due diligence, be compelled to attend at the hearing (see CPLR 4531 ). Plaintiff's witness, Skye Gao, Esq., testified about the steps that were taken to secure Guskin's attendance and Guskin's adamant response that he would not attend, and the court's determination that Gao's testimony was credible is entitled to our deference ( Arrufat v. Bhikhi, 101 A.D.3d 441, 954 N.Y.S.2d 538 [1st Dept. 2012] ).
The court providently exercised its discretion in allowing Gao's testimony and documents although she had not been disclosed as a witness. The law firm partner on plaintiff's case testified about the firm's efforts to secure Guskin's appearance, but he had not communicated directly with Guskin about his availability; Gao had done so. As defendant had had notice of the affidavits of service and Gao's efforts to secure Guskin's appearance, and the partner had addressed them during the course of his testimony, defendant was not prejudiced by Gao's testimony (see Singleton v. Consolidated Edison Co. of N.Y., Inc, 112 A.D.3d 491, 977 N.Y.S.2d 215 [1st Dept. 2013] ).
As shown in his affidavits of service, Guskin tried to serve defendant in person at his undisputed residence five times, on weekdays and on a Saturday and at different times of day, and only when he had failed did he affix a copy of the pleadings to defendant's door, followed by a mailing (see CPLR 308[4] ). These efforts at service constitute the requisite due diligence under the statute (see Bank of Am., N.A. v. Budhan, 171 A.D.3d 622, 99 N.Y.S.3d 264 [1st Dept. 2019] ; Matter of Krodel v. Amalgamated Dwellings, Inc., 139 A.D.3d 572 [1st Dept. 2016] ). Guskin was not required to try to serve defendant at his place of business before nailing and mailing (see Farias v. Simon, 73 A.D.3d 569, 899 N.Y.S.2d 843 [1st Dept. 2010] ; Brunson v. Hill, 191 A.D.2d 334, 595 N.Y.S.2d 314 [1st Dept. 1993] ). Nor was plaintiff required first to try service pursuant to CPLR 308(2) ( Farias, 73 A.D.3d at 570, 899 N.Y.S.2d 843 ). Defendant's conclusory denials of receipt of service failed to rebut the presumption of proper service created by the affidavits ( HSBC Bank USA, N.A. v. Hanchard, 170 A.D.3d 599, 97 N.Y.S.3d 67 [1st Dept. 2019] ).
The court providently exercised its discretion in precluding defendant's witnesses and documents on the grounds that he did not disclose the witnesses until the eve of the hearing, despite subpoenaing them a week earlier and despite the court order to exchange witness lists one week in advance, and that he did not disclose the "Incident Report" until the hearing was under way (see Shmueli v. Corcoran Group, 29 A.D.3d 309, 816 N.Y.S.2d 410 [1st Dept. 2006] ).
We have considered defendant's remaining arguments and find them unavailing.