Opinion
105570/2009.
August 19, 2010.
Decision/Order
In this action, plaintiff alleges that co-defendant Shoukat Ali ("Ali") was a tenant in a building owned by 600-602 Tenth Avenue Realty Corporation ("Tenth Avenue"). According to the complaint, co-defendant Fajid Siddiq ("Siddiq") was in Ali's apartment as an invitee on October 11, 2006. There is no allegation that he resided at the premises. While Siddiq was in the apartment, plaintiff alleges, Ali and Siddiq failed to exercise reasonable care in lighting and otherwise handling a candle. As a result, there was a fire in the apartment, resulting in fire, smoke and water damage in the building. Plaintiff subrogee New Hampshire Insurance Company ("plaintiff") paid Tenth Avenue $31,281.44 to cover the cost of the damages and now sues both Ali and Siddiq to recover that amount.
Mr. Siddiq's letter to plaintiff indicates that the spelling of his name in the complaint — that is, Saddiq — is inaccurate and that his name is Siddiq.
Once plaintiff initiated the action, it attempted to serve both defendants with the summons and complaint. Service upon Ali is not at issue at this time. Plaintiff alleges that it served Siddiq properly by delivering his copy of the complaint to Ali. The date of the alleged service is June 5, 2009. The Court also notes that there is no nonmilitary affidavit accompanying the affidavit of service.
Siddiq did not answer the complaint but wrote a letter to plaintiff. In the letter he indicates that "I have been informed by Mr. Shoukat Ali that you have filed a lawsuit against me in New York." In addition, he indicates that he lives in Oregon. Plaintiff states that in the letter Siddiq indicates that he has no intention of fighting the lawsuit. Though counsel's statement is technically accurate the quote is taken out of context, to misleading effect. What Siddiq actually writes is that he did not plan " on going back to New York to fight the lawsuit," but that he did "plan to defend myself in Oregon if your office continues its lawsuit against me."
Currently, plaintiff seeks default judgment against co-defendant. To obtain default judgment, plaintiff not only must set forth a prima facie case under the complaint but must show that service was proper. Marita Car Rentals v, Ishtiaq, 11 Misc. 3d 506, 508, 810 N.Y.S.2d 869, 871 (City Ct. Buffalo 2006); see Pearson v. 1296 Pacific St. Assoc., Inc., 67 A.D.3d 659, 660, 886 N.Y.S.2d 898, 898 (2nd Dept. 2009). Service upon a person of suitable age and discretion is proper service under CPLR 308(2).
As the Court has indicated, plaintiff claims that service upon Ali as a person of suitable age and discretion is sufficient to comprise service upon Siddiq. However, for several reasons, the Court disagrees. CPLR § 308(2) allows service "to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served" (emphasis supplied). Here, plaintiff served Ali on behalf of Siddiq at Ali's apartment. However, according to plaintiff's own complaint, Siddiq was not a resident but an invitee at Ali's dwelling place. In addition, the Court notes that Siddiq's letter to plaintiff states that he has not lived in New York since 2006 — and, therefore, shows that he did not live in or near Ali's apartment at the time of the purported service. As plaintiff failed to comply with the express terms of the statute, service is defective. Plaintiff's statement that "Mr. Ali was authorized to accept service," Flomenhaft Aff., ¶ 7, is conclusory. As counsel does not set forth the basis of this purported authority, the statement is not persuasive.
In addition, there are other concerns regarding the propriety of service on Ali under CPLR § 308(2). For one, it is not clear that Ali actually delivered the complaint to Siddiq. As plaintiff notes, Siddiq is aware of the lawsuit. However, the first sentence of Mr. Siddiq's letter, which states, "I have been informed by Mr. Shoukat Ali that you have filed a lawsuit against me in New York." There is no indication that he saw the complaint itself. Even if someone is conceivably qualified to accept service, "actual notice . . . depend[s] on several contingencies."Raschel v. Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 22, 23 (1986). Among them, the recipient of the documents must know that service was being made to him on behalf of the intended recipient, must notify that intended recipient, and must furnish the intended recipient with copies of the pleadings. Id. at 697, 512 N.Y.S.2d at 23-24. It is not clear that service upon Ali satisfied this standard.
For another thing, Ali and Siddiq are co-defendants, and it is possible that their interests in the lawsuit are adverse. For example, there may be an apportionment of liability among the two men. Even if they shared a residence — which, again, they did not — due to the potential conflict of interest Ali would not have been a person of suitable age and discretion. See Weidemann v. Keith, 127 A.D.2d 831, 512 N.Y.S.2d 224 (2nd Dept. 1987).
For all the reasons above, it is
ORDERED that the motion is denied.