Opinion
EF2020-3073
08-30-2021
Charles VALOIS, Plaintiff, v. Greg V. FISCHER and Kawe Doerfler, Defendants.
Charles Valois, Plaintiff, pro se Michael J. Matsler, Esq., Counsel for Defendants, movant x2, Rider, Weiner & Frankel, P.C., 655 Little Britain Road, New Windsor, New York 12553
Charles Valois, Plaintiff, pro se
Michael J. Matsler, Esq., Counsel for Defendants, movant x2, Rider, Weiner & Frankel, P.C., 655 Little Britain Road, New Windsor, New York 12553
Lisa M. Fisher, J.
Plaintiff commenced this action asserting various causes of action against Defendant Greg V. Fischer (hereinafter "Fischer") and later amending the complaint to add Defendant Kawe Doerfler (hereinafter "Doerfler"; collectively "Defendants"). Defendant Fischer moved to dismiss prior to this amendment, which Defendant Doerfler files a second, related motion to dismiss.
Plaintiff has not filed opposition to the motions. Plaintiff has not contacted chambers to request an extension of time, adjournment, or other continuance. Plaintiff has not filed any correspondence or requests via NYSCEF or in email to chambers. Since the time the motions have been pending, the only action by Plaintiff has been to file an affirmation/affidavit of service on Defendant Doerfler.
Defendants move to dismiss on the grounds of lack of proper service. Motions to dismiss are governed by CPLR R. 3211, and a pleading subject to such dismissal "is to be afforded a liberal construction" ( Leon v Martinez , 84 NY2d 83, 87 [1994], citing CPLR § 3026 ["Pleadings shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced."]). Specifically, CPLR R. 3211 (a) (8) allows a defendant to move for a judgment dismissing one or more causes of action asserted against him on the ground that "the court has no jurisdiction of the person of the defendant." "Absent a defendant's waiver, the failure to serve within the 120-day period warrants the court, upon motion, to ‘dismiss the action without prejudice’ or ‘extend the time for service’ " ( Page v Marusich , 30 AD3d 871, 872—73 [3d Dept 2006] ). Extending the time is done "upon good cause shown or in the interest of justice" ( CPLR § 306-b ).
As to Defendant Fischer, he contends that service of the summons and complaint was more than 120 days after commencement in violation of CPLR § 306-b which warrants dismissal. Here, the summons and complaint were filed on November 21, 2020, although there is a NYSCEF notation that they were received on December 2, 2020. The Court finds it unnecessary to review and decide the significance of these two dates for reasons set forth below. There are two attempts to serve Defendant Fischer in the record.
The first attempt is through service on his former attorney for a mechanic's lien matter. It appears Plaintiff was attempting to serve Defendant Fischer's "agent" (see CPLR § 308 [3] ). However, there is no evidence that the former attorney was still representing Defendant Fischer or had authority to accept service ( CPLR §§ 308 [3], 318 ). Defendant Fischer advises that he indeed had not retained, authorized, or was continuing to use his former attorney at the time of the attempted service. Service on an attorney pursuant to CPLR R. 2103 (b) does not apply, as this section governs "interlocutory" papers and initiatory papers are governed by the strict requirements of article 3 of the CPLR (see CPLR R. 2103 [b] ; Practice Commentaries, C:2103:1). Therefore, Plaintiff's attempt to serve Defendant Fischer's former attorney was ineffective.
The second attempt to serve Defendant Fischer was—cheesy. On April 9, 2021, Defendant Fischer claims an officious intermeddling pizza delivery person appeared at his house and handed him a closed pizza box saying "here, you're served" before scampering off to her vehicle. Defendant Fischer avers he took the unordered, unexpected pizza box inside to his kitchen wherein he opened the box. Much to his chagrin, Defendant Fischer discovered a thick stack of inedible initiatory papers—he'd been sauced.
However, inasmuch as April 9, 2021 is more than 120 days from December 2, 2020 (the most favorable day to measure for Plaintiff), it means this pizza delivery was late. A late pizza delivery means it is free and on them—the Plaintiff. Since Plaintiff has not appeared in opposition to demonstrate good cause shown or in the interest of justice, the Court grants Defendant Fischer's motion to dismiss this action, without prejudice (see Page, supra , 30 AD3d at 873 ; see also CPLR § 306-b ). The Court finds it unnecessary to address the myriad of other obvious issues with the summons and complaint raised in Defendant Fischer's motion, as well as the extra topping of hidden service of process—considering that he was told he was served and immediately discovered same (see Nationwide Mut. Ins. Co. v Monroe , 75 AD2d 765 [1st Dept 1980] [cited by Defendant's motion, but the Court finding it not supportive of this position inasmuch as the quoted language provides "[a] method of service which is misleading and disguises the contents or seeks to prevent actual knowledge of the contents before it is too late to interpose opposition is no service at all."]).
As to Defendant Doerfler's motion to dismiss, this expressly joins in the relief of Defendant Fischer's motion and raises other grounds for dismissal. The Court interprets this as also moving for improper service. Plaintiff had Defendant Doerfler served via "affix and mail."
Personal service is governed by CPLR § 308, and subdivision (4) "affix and mail" can satisfy the requirements of RPAPL § 1371 (2) (see Citibank, N.A. v Demadet , 243 AD2d 532, 533 [2d Dept 1997] ["Since CPLR 308 categorizes [affix and mail] as personal service, it is a permissible means of ‘personal service’ of notice of an application for leave to enter a deficiency judgment, as required by RPAPL 1372 [2]."]). In order to utilize the "affix and mail" provision under CPLR § 308, a party must first demonstrate that service under subdivisions (1) and (2) cannot be made with "due diligence" (see State of NY Higher Educ. Servs. Corp. v Sparozic , 35 AD3d 1069, 1070—71 [3d Dept 2006] ). "[T]he requirement of ‘due diligence’ must be strictly observed, and ... the burden of proving due diligence rests upon the plaintiff" ( State of NY Higher Educ. Servs. Corp. v Cacia , 235 AD2d 986, at 883—84 [3d Dept 1997] ). Further, "the requirements of ‘due diligence’ in attempting to make personal service are not rigidly prescribed" ( Jacoby v New York State Bd. for Professional Med. Conduct , 295 AD2d 655, 656 [3d Dept 2002] ), and the courts "have never established a precise, minimum number of attempts at service which are necessary" ( Sparozic , 35 AD3d at 1071 ). Rather, "due diligence ... refers to the quality of the efforts made to effect personal service, ... not their quantity or frequency" ( Maines Paper & Food Serv., Inc. v. Boulevard Burgers Corp. , 52 AD3d 1150, 1151 [3d Dept 2008] ). The act of affixing and mailing occur within twenty days of each other to be valid (see CPLR § 308 [4] ).
Here, the affidavit of service sworn on May 5, 2021 avers that "three attempts" were made before this fourth and last attempt. However, none of these attempts were documented as to the date or time made on the affidavit. In fact, the affidavit of service also fails to fill in the date that the amended summons and complaint was left at Defendant Doerfler's residence. The affidavit of service also fails to provide the date at which the mailing occurred. Therefore, the affidavit of service is a complete nullity and jurisdiction over Defendant Doerfler is also not obtained. As such, Defendant Doerfler's motion to dismiss is also granted, without prejudice. The Court similarly finds it unnecessary to address the litany of other issues raised in the motion regarding the summons and complaint.
To the extent not specifically addressed above, the parties’ remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Defendant Fischer's motion is GRANTED , and the complaint/amended complaint asserted against him is DISMISSED , without prejudice, and all other relief requested therein is denied in its entirety;
ORDERED that Defendant Doerfler's motion is GRANTED , and the complaint/amended complaint asserted against her is DISMISSED , without prejudice, and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that the original of this Decision and Order is being filed by Chambers with the County Clerk on NYSCEF. The prevailing party must comply with CPLR R. 2220 regarding entry and Notice of Entry.
IT IS SO ORDERED.
The Court considered all papers submitted on NYSCEF for motion sequence No.001 and #002, including NYSCEF #46 — #67, excluding #64—65 which were deleted by the clerk's office.