Opinion
22091/2009.
Decided March 19, 2010.
Traci Bransford Bullock, PC, Brooklyn, NY, Attorney for Plaintiff.
Betty Lugo, Esq., Pacheco Lugo, Brooklyn, NY, Attorney for Defendants.
By notice of motion filed on November 24, 2009, under motion sequence number one, defendants Kendall Washington and Victoria Washington jointly move pursuant to CPLR § 3211 to dismiss the complaint based on the courts' lacks of personal and subject matter jurisdiction, the complaint's failure to state a cause of action and a prior action pending between the parties. Plaintiff opposes the motion and cross-moves under motion sequence number two and pursuant to CPLR § 3215 for a default judgment against the defendants.
BACKGROUND
On August 31, 2009 plaintiff commenced this action by filing a summons and verified complaint with the Kings County clerk's office. Pursuant to various provisions of CPLR § 3211, the defendants seeks to dismiss the complaint before being required to answer it. The complaint alleges thirty seven allegations of fact in support of four causes of action, namely, assault and battery, wrongful eviction, breach of covenant of quiet enjoyment, and breach of warranty of habitability.
SERVICE OF THE PLEADINGS
Plaintiff believes that the defendants reside together. On October 1, 2009, plaintiff's process server, Manzoor Rahaman, signed his affidavit of service of the summons and complaint before a notary public. He alleged service of the summons and complaint upon each of the defendants as follows. On September 9, 10, and 14, 2009, he unsuccessfully attempted to personally deliver the papers to each defendant at a specific address in Kings county. All of the attempts at service were made between 6:35 am and 6:05 pm. On September 14, 2009, he affixed a copy of the summons and complaint for each defendant at the front door of the same address were he attempted personal delivery. Thereafter, on October 1, 2009, he mailed a copy of the summons and complaint to each defendant at the exact same address. On October 8, 2009, he filed his affidavits of service upon each of the defendants with the clerk of the court.
MOTION PAPERS
Defendants' motion papers consist of an attorney's affirmation, the defendants' respective affidavits and five annexed exhibits labeled A through E. Exhibit A is a letter from plaintiff's counsel to Kendall Washington dated October 16, 2009 which included a copy of the summons and complaint. Exhibit B is Notice of Claim from the Kings County Civil Court Small Claims Part addressed to Victoria Washington (SCK 1165/09-1). Exhibit C is a copy of the lease agreement between the plaintiff and the defendants. Exhibit D is a New York City Police Department Complaint report. Exhibit E are the affidavits of service of the summons and complaint upon each of the defendants.
Plaintiff's cross motion consists of an affirmation of counsel and five annexed exhibits labeled A through E. Exhibit A is the summons and complaint. Exhibit B is the affidavit of service of the instant action upon the defendants. Exhibit C is a copy of the affidavit of mailing of a copy of the summons and complaint service. Exhibit D is a copy of correspondence from plaintiff's counsel to defendants' counsel. Exhibit E is a copy of correspondence from Liberty Mutual Insurance Company to the defendants.
Plaintiff's opposition to the defendants' motion consist of an attorney's affirmation and four annexed exhibits labeled A through D. Exhibit A is the affidavit of service of the instant action upon the defendants. Exhibit B is a copy of correspondence from Liberty Mutual Insurance Company to the defendants already annexed as exhibit E to plaintiff's cross-motion. Exhibit C is a copy of correspondence from plaintiff's counsel to defendants' counsel already annexed as exhibit D to plaintiff's cross-motion. Exhibit E is a copy of a voluntary discontinuance of an action between the parties bearing index number 1165KS2009.
Defendants submit a reply to the defendants' opposition to the cross motion and in further support of their motion consisting of an affirmation of counsel, an affidavit of Victoria Washington and several annexed exhibits that are already part of the other motion papers.
LAW AND APPLICATION
CPLR § 308 (4) provides that where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing.
When a plaintiff seeks a default judgment, the burden is on the plaintiff to prove proper service upon the defendant with the summons and complaint. Each of the affidavits of plaintiff's process server demonstrates that he attempted service of the summons and complaint on both defendants pursuant to CPLR § 308(4). The affidavit of service of the plaintiff's process server indicates that he made three (3) attempts to serve the summons and complaint upon each defendant personally or by serving someone of suitable age and discretion, pursuant to CPLR § 308 (1) and (2).
The first attempt was made on September 9, 2009 at 6:35 a.m.; the second was made on September 10, 2009 at 12:09 p.m.; and the third was made on September 14, 2009 at 6:05 p.m. Each of these attempts was made at 187 South Portland Avenue, in Brooklyn, New York which the plaintiff's process server alleged was "the defendant's residence." Each of the affidavits of service further indicates that on September 14, 2009 at 6:05 p.m a copy of the summons and complaint was affixed to the door of the aforesaid address; and, a copy was mailed to each defendant at this address on October 1, 2009.
Plaintiff may only resort to service pursuant to CPLR § 308(4) where service pursuant to CPLR § 308(1) and (2) cannot be made with due diligence ( County of Nassau v. Lotosky , 34 AD3d 414 [2nd Dept., 2006]). All three of the plaintiff's attempts at service on each defendant were made on a weekday, during normal business hours when it could reasonably have been expected that the defendants would either be working or be in transit to or from work ( see Earle v. Valente, 302 AD2d 353 [2nd Dept., 2003]). Moreover, the affidavit of the plaintiff's process server, together with the papers submitted with the instant motion and cross-motion failed to demonstrate that the process server attempted to ascertain either defendant's business address and to effectuate personal service at that location, pursuant to the provisions of CPLR § 308(1) and (2) ( County of Nassau v. Long, 34 AD3d 787 [2nd Dept., 2006]).
Having failed to demonstrate the exercise of due diligence before attempting service of the summons and complaint pursuant to CPLR § 308(4), the complaint must be dismissed and plaintiff's cross-motion for a default judgment must be denied.
The foregoing constitutes the decision and order of the court.