Opinion
11-14-2017
Michelle HICKMAN, Plaintiff, v. Gabriella C. BERETTA and Steven Gentile, Defendants.
Joseph B. Viener, Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, for Plaintiff.
Joseph B. Viener, Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, for Plaintiff.
LEONARD D. STEINMAN, J. Motions seeking to enter or vacate default judgments are routinely made before this and other courts. The requirements to obtain a default judgment are well known and often repeated—there is no shortage of caselaw in this area. Occasionally though, circumstances present themselves that trigger a re-examination of what is thought to be a well-established area of the law and cautions against the simple rote application of familiar rules.
This case presents such circumstances. Plaintiff seeks a default judgment against two defendants who purportedly were served pursuant to CPLR § 308(2). But plaintiff provides no facts to support the assertion that the location at which the pleadings were left was one of the defendant's "actual place of business, dwelling place or usual place of abode," as required by the statute. Instead, plaintiff relies upon a conclusory assertion in this regard contained in her process server's affidavit—an assertion inconsistent with plaintiff's summons.
It is often said that a process server's affidavit constitutes prima facie evidence of proper service. See, e.g., Youngstown Tube Co. v. Russo, 120 A.D.3d 1409, 993 N.Y.S.2d 146 (2d Dept.2014). This case highlights the dangers of such a sweeping generality, particularly where a default judgment is sought following purported service pursuant to CPLR § 308(2). It is more properly stated that the facts contained in a process server's affidavit may be relied upon to prima facie establish proper service. Where a process server's affidavit—or other submission in support of a default judgment—fails to contain facts evincing that process was delivered at a defendant's "actual place of business, dwelling place or usual place of abode" pursuant to CPLR § 308(2), no default can be entered in reliance upon that provision.
BACKGROUND
Plaintiff commenced this action on March 21, 2017. She seeks to recover for personal injuries allegedly sustained when she slipped and fell on an icy walkway located at 1023 Theodora Street in Nassau County, New York (the premises). In her Verified Complaint, plaintiff alleges that defendants own the
premises. In her Summons, plaintiff identifies defendant Steven Gentile's address as the premises. With respect to defendant Gabriella C. Beretta, however, plaintiff identifies an apartment in Whitestone, New York as her address.
In support of her motion, plaintiff submitted two affidavits of service that reflect that the defendants were served on April 13, 2017 by serving someone of suitable age and discretion at the premises with a follow-up mailing to the premises. The county clerk's file reveals that the affidavits were filed on April 18, 2017. Plaintiff and her counsel attest that defendants have failed to serve an answer within the statutory period or otherwise appear, and no request for an extension of time has been made. Plaintiff now seeks an order granting judgment on default against both defendants in this action pursuant to CPLR § 3215. No opposition has been submitted by either defendant.
Arguably, plaintiff failed to sufficiently evidence defendants' default as required by CPLR 3215(f) because she did not provide proof of the filing of the affidavits of service. See Russo v. Bhatti, 52 Misc.3d 1215(A), 2016 WL 4103730 (Sup.Ct. Kings Co.2016). The filing triggers the time from which a responsive pleading is due. CPLR § 308(2). The court, however, may take judicial notice of the county clerk's file. See Khatibi v. Weill, 8 A.D.3d 485, 778 N.Y.S.2d 511 (2d Dept.2004) (court may take judicial notice of undisputed court records and files).
THE AFFIDAVITS OF SERVICE
The affidavits of service state that both defendants were served by delivering copies of the pleadings on April 13, 2017, at 5:20 p.m., at the premises to a "Jane Doe"—a white individual with blonde hair who refused to provide her name—who is described as a person between 51–65 years of age. Jane Doe confirmed that neither defendant was in the military. Both affidavits are on pre-printed forms that contain a place for the process server to check a box reflecting that each defendant was served at premises constituting either (1) the defendant's "actual place of business/employment" or (2) "dwelling house (usual place of abode)." In both instances, the process server checked the box reflecting that each defendant was served at his or her "dwelling house (usual place of abode)."
LEGAL ANALYSIS
Absent valid proof of service, a default judgment pursuant to CPLR § 3215 may not be entered. Widman v. Turner, 55 Misc.3d 131(A), 2017 WL 1238136 (App.Term, 2d Dept.2017) ; see also Daniels v. King Chicken & Stuff, Inc., 35 A.D.3d 345, 827 N.Y.S.2d 186 (2d Dept.2006). This requirement is statutory, and also reflects the burden a plaintiff bears to establish by a preponderance of the evidence that jurisdiction over a defendant was obtained by proper service of process. See Bankers Trust Co. of Calif., N.A. v. Tsoukas, 303 A.D.2d 343, 756 N.Y.S.2d 92 (2d Dept.2003). Due process requires no less.
Such proof of service may properly be relied upon by courts as prima facie evidence of proper service—including service pursuant to CPLR § 308(2). See, e.g., U.S. Bank National Association v. Ramos, 153 A.D.3d 882, 60 N.Y.S.3d 345 (2d Dept.2017). It does not follow, however, that a plaintiff has met its burden of establishing proper service simply by relying upon the conclusory assertions contained in a process server's affidavit that a particular address constitutes an individual's dwelling house or usual place of abode. And that is particularly true here, where the plaintiff's summons reflects a different address for one of the defendants. Plaintiff's counsel also attests to mailing a follow-up letter to defendant Beretta informing her that she was served with process and instructing her to file an Answer within ten days or a default would be sought—a letter addressed to Beretta at the Whitestone address and not the premises.
Unquestionably, the factual details of a process server's method of effecting service as described in an affidavit of service should be given prima facie weight—who was served, where, when and how. These details, provided by a licensed individual, are required by statute. See CPLR 306. But whether the place of service constitutes an individual's dwelling house is not something that can fairly be established based solely upon a legal presumption that the bare, hearsay assertion of a process server, lacking factual support, is true. Such expediency must give way when due process concerns are implicated. As stated by Justice Oliver Wendall Holmes in McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608 (1917), in which the Supreme Court reversed a judgment on jurisdictional grounds, "great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact."
One would not ordinarily expect a process server—typically directed by counsel to attempt service at a particular location—to know whether a location is a defendant's dwelling house. So why should courts engage in the fiction that the process server has such personal knowledge? And if the process server does have such knowledge he or she should disclose its basis in the affidavit. In certain circumstances, relevant here, courts have recognized that conclusory assertions contained in an affidavit of service are afforded no weight. CPLR 4531 provides that an affidavit of service is prima facie evidence of proper service if the affiant is dead or cannot be compelled with due diligence to attend at trial. Courts have utilized this statute to rely upon such affidavits at traverse hearings. See e.g., Koyenov v. Twin–D Transportation, Inc., 33 A.D.3d 967, 824 N.Y.S.2d 338 (2d Dept.2006). But the Appellate Division has been careful to point out that such affidavits must not be "conclusory and devoid of sufficient detail." See Gordon v. Nemeroff Realty Corp., 139 A.D.2d 492, 526 N.Y.S.2d 595 (2d Dept.1988). See also Jones v. King, 24 A.D.2d 430, 260 N.Y.S.2d 666 (1st Dept.1965) (process server's affidavit deemed insufficient since it was conclusory).
The need for caution when seeking to establish proper service under CPLR § 308(2) or (4) should be apparent to the careful practitioner. Professor David Siegel recognized as such when he stated in one of his Practice Commentaries to CPLR § 3215 : "Proof of service would of course be put in through the process server's affidavit in the usual case. [T]he proof of service required on the default application may have to be more detailed when a method other than personal delivery has been used for summons service." Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3215:16.
What is required to establish proper service under CPLR 308(2) is not burdensome. The affidavit of service, or the attorney or party's affidavit establishing the default, need only disclose to the court the basis for believing that the place of service was a defendant's dwelling house, usual place of abode or actual place of business. A plaintiff must have such a basis for he is required to satisfy elemental notions of due process before he may request that the court enter a judgment against the defendant in its absence.
When applying these principles to the application presently before the court, it is clear that plaintiff's application for a default judgment against Beretta must be denied. There is no reason to conclude that the premises are her dwelling place or usual place of abode. Given the address on the summons and the letter sent to Beretta by counsel, the opposite is true.
In contrast, the Gentile affidavit of service does supply a factual predicate to support the assertion that substituted service could be effected upon him at the premises. The affidavit of service contains a notation at the bottom that states "DMV Verified 213 A.D.2d 577, 623 N.Y.S.2d 932." The legal citation refers to Burke v.
Zorba Diner, Inc., 213 A.D.2d 577, 623 N.Y.S.2d 932 (2d Dept.1995), a case in which it was held that a defendant may be served pursuant to CPLR 308(2) by service upon a person of suitable age and discretion at the address on file for the defendant with the Department of Motor Vehicles. Therefore, it is fair to interpret the affidavit as setting forth that the process server verified the premises as Gentile's dwelling house with the Department of Motor Vehicles.
Therefore, for all of the above reasons, plaintiff's application for a default judgment against defendant Gentile is granted and the application as to defendant Beretta is denied. Plaintiff is afforded an additional sixty (60) days to attempt service upon Beretta pursuant to CPLR § 306(b). Plaintiff is to notify the court if it desires to schedule an immediate inquest with respect to Gentile.
This constitutes the Decision and Order of the court. Any relief requested not specifically addressed herein is denied.