Opinion
CV 6086/16
11-27-2017
Lancer Insurance Company A/S/O MAURICE M. BARRETT, Plaintiff, v. Toby M. Seltzer, Defendant.
CARMEN, CALLAHAN & INGHAM, LLP Attorneys for Plaintiff By: JAMI C. AMARASINGHE, ESQ. 266 Main Street Farmingdale, NY 11735 516.249.3450 TOBY M. SELTZER Defendant, pro se
CARMEN, CALLAHAN & INGHAM, LLP Attorneys for Plaintiff By: JAMI C. AMARASINGHE, ESQ. 266 Main Street Farmingdale, NY 11735 516.249.3450 TOBY M. SELTZER Defendant, pro se Sabrina B. Kraus, J.
BACKGROUND
Plaintiff commenced this action pursuant to a Summons and Complaint filed on June 20, 2016, seeking $ 1897.04, with interest, for property damage as the result of a motor vehicle accident which occurred on May 7, 2016.
The affidavit of service was filed on August 17, 2016, and asserts substitute service on Eileen F., an alleged security guard of Defendant, found at 1 Pier Points Street, Yonkers, NY 10701, Defendant's usual place of abode, on August 3, 2016 at 2:35 pm with a mailing on August 5, 2016, to 1 Pier Points Street, Yonkers, NY 10701.
Defendant has never answered or appeared. THE PENDING MOTION
On November 20, 2017, Plaintiff moved for an order pursuant to CPLR § 3215 seeking entry of a default judgment against Defendant. Defendant failed to appear and the court marked the motion submitted and reserved decision.
Plaintiff is an insurance company with whom MAURICE M BARRETT (Barrett), maintained an auto insurance policy. On or about May 7, 2016, Barrett was involved in an automobile accident wherein, according to the police report annexed to the moving papers (Ex B), Barrett's automobile, slowed down to a stop, due to an accident in front of him, when he was rear-ended by Defendant. There were five automobiles involved in the accident in total, Barrett being the driver of vehicle 4 and Defendant driving vehicle 5. Barrett's vehicle sustained damage. Plaintiff asserts the damage was solely the result of the negligence of Defendant.
Plaintiff moves for a default judgment against Defendant, pursuant to CPLR § 3215(e), in the amount of $1897.04, to recover $897.04 paid to Barrett, representing the cost of repairs and Barrett's $1000 deductible.
Pursuant to CPLR § 3215(f) Plaintiff must establish proper service to obtain a default judgment. The affidavit of service states that the summons and complaint were served on Defendant on August 3, 2016, at 2:35 pm, by delivery to "Eileen F., security guard of Toby M Seltzer" at 1 Pier Point Street, Yonkers, NY 10701. The affidavit further alleges that said premises is Toby M. Seltzer's usual place of abode, and that on August 5, 2016, a mailing was done to the same address.
CPLR § 308 (2) provides for personal service upon a natural person " .... by delivering the summons within the state to a person of suitable age and discretion at the ... dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence .....".
The statute further requires that proof of service be filed within 20 days of the mailing and that such " ... shall identify such person of suitable age and discretion and state the date, time and place of service."
There are a few issues with the affidavit of service, and possibly with the manner in which service was made.
The first issue is that it is unclear to whom the papers were delivered. There is no last name, only an initial. There is no statement that the person refused to provide their last name. It is not clear if delivery was made to a doorman in the lobby of to a security guard personally employed by Defendant.
The court takes judicial notice that the subject building is a large apartment complex, and a multiple dwelling. The court further notes the address for the building is 1 Pierpointe Street, not 1 Pier Points Street as indicated on the affidavit of service.
Court takes judicial notice of the website maintained by the City of Yonkers at imo.yonkersny.gov which indicates it is an apartment complex and that the correct address for the building is 1 Pierpointe Street, Yonkers, New York.
Both for delivery and mailing, the address cited in the affidavit of service fails to state Defendant's apartment number, and as such is incomplete. Therefore in addition to not being able to tell if the process server was stopped in the lobby by a doorman, or where in the building Eileen F was served, the mailing that was done listed no apartment number.
The court notes that the motion was alleged mailed to the correct address (ie the street address was written correctly) and that it was specified as being to apartment 215, which was not indicated in the affidavit of service.
Jurisdiction is not acquired pursuant to CPLR § 308(2) unless both the delivery and the mailing requirements have been strictly complied with (Feinstein v Berger 48 NY2d 234).
As to the delivery requirement, the court can not discern from the face of the affidavit of service if delivery was proper. In the case of a multifamily residence, process papers ordinarily must be delivered to a person residing at the defendant's own apartment (Johnson v. Motyl, 202 AD2d 477, 478; Biological Concepts v. Rudel, 159 AD2d 32; Macchia v. Russo, 67 NY2d 592). However, there are instances where a process server is not permitted access to a specific apartment or is advised that the intended party is not home and delivery to a doorman has been found to satisfy the requirements of § 308(2) [Charmin v Cogan 250 AD2d 513, 517]. The problem here is the affidavit seems to indicate that the person served was a security guard employed by Defendant personally, and does not indicate where in the building the person was served, and does not provide a last name for the individual served.
As to the mailing, which wrongly listed the street and failed to include an apartment number, it is not clear that the mailing is sufficient. As noted above § 308(2) is to be strictly construed, and a mailing to an incomplete or incorrect address may be insufficient to sustain jurisdiction (Foster v Cranin 180 AD2d 712). "However, a minor error in the address to which a summons is mailed will not render service of process void where 'it is virtually certain that the summons will arrive' at its intended destination (Gray-Jospeh v Liu 90 AD3d 988, at 989 citing Brownell v Feingold 82 AD2d at 844)."
In this case the court can not make such a determination on the papers submitted. Are there ten apartments in the building or hundreds? Were any of the envelopes returned as undeliverable? When did Plaintiff have knowledge of the correct street spelling and the apartment number?
The court notes that the notice of motion is labeled as an amended notice of motion, but there is no copy of the original notice of motion provided to the court as required [see eg CPLR § 2214( c); 100 E. 21st St. Equities LLC v. Cummings-Sharpe, 15 Misc 3d 1132(A)].
Based on the foregoing, Plaintiff's motion for a default judgment is denied, without prejudice to making a new motion which addresses the issues raised herein.
This constitutes the decision and order of the court. Dated: November 27, 2017 Bronx, New York _______________________ Hon. Sabrina B. Kraus, JCC