Opinion
Index No. 159763/2021 001
07-14-2022
ARIANA ZELAYA Plaintiff, v. EDWARD IRIZARRY, Defendant.
Unpublished Opinion
MOTION DATE 01/26/2022
DECISION + ORDER ON MOTION
HON. SHLOMO HAGLER JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17 were read on this motion to/for DISMISSAL.
Defendant moves pursuant to CPLR § 3211(a) (8) to dismiss this action for failure of plaintiff to properly serve defendant. Defendant's motion is moot to the extent that plaintiff seeks to dismiss the second and third causes of action on the merits given that plaintiff has withdrawn her Second Cause of Action (Intentional Infliction of Emotional Distress) and Third Cause of Action (Negligent Infliction of Emotional Distress) (Plaintiffs Affirmation in Opposition at ¶ 9 [NYSCEF Doc. No. 11]).
The remaining first cause of action in the Complaint is for assault and battery. The Complaint alleges that on March 12, 2021, plaintiff was collecting signatures from registered Democrats on petitions for the campaign of a candidate for a judge for Civil Court in Manhattan and was situated in front of a Citibank located at 411 Grand Street. The Complaint alleges that "at approximately 10:00 a.m. while plaintiff was lawfully standing on the sidewalk at the aforesaid location, defendant, Edward Irizarry walked up to her, stood very closely to her and aggressively grabbed the petition board from plaintiffs hands with force placing her in imminent fear of harm" and that defendant "aggressively yelled at plaintiff in a menacing and intimidating manner with the intent to cause intimidation, harm and fear to plaintiff (Complaint, ¶¶ 4-5 [NYSCEF Doc. No. 1]). It is undisputed that defendant was also a candidate in the primary election for a position as a Civil Court Judge (see Defendant's Affidavit, sworn to on November 15, 2021 at ¶ 12 [NYSCEF Doc. No. 5]).
Plaintiff commenced a prior action against defendant (Zelaya v Irizarry [Index No. 153505/2021] which was dismissed by Order, dated October 25, 2021 [Hon. David B. Cohen, J.S.C.] for failure to serve a complaint [NYSCEF Doc. No. 13]. Said Order provided that the dismissal was not on the merits and plaintiff may refile the action "should she be so advised."
There are disputed issues regarding the subject Affidavits of Service. An Affidavit of Service, sworn to on November 5, 2021, attests that defendant was served pursuant to CPLR § 308 (2) on November 4, 2021 at 11:38 a.m. by service on "John Irizarry, Relative of the Defendant," a person of suitable age and discretion at "80 Bank St Apt 5, New York, NY 10014" ("80 Bank St"), that address described as both the last known residence and usual place of abode of defendant [NYSCEF Doc. No. 2] (the "November 5 Affidavit of Service").
After this motion was filed, plaintiff made a second attempt to serve defendant. An Affidavit of Service, sworn to on December 13, 2021, attests to service on defendant pursuant to CPLR § 308 (4) by service on defendant on December 10, 2021 at 10:38 a.m. after two prior attempts at 80 Bank St (the "December 13 Affidavit of Service"). The process server, Andre Meisel, also submits a further affidavit describing his aforementioned service attempts (the "Meisel Affidavit") [NYSCEF Doc. No. 13].
Although the Meisel Affidavit states that 80 Bank St is defendant's last known residence rather than actual dwelling place or usual place of abode, defendant admits that he "has resided in apartment 5 at 78 Bank Street (also known as 80 Bank Street), New York, New York, for the past 24 years, including on November 4, 2021" (Defendant's Affidavit, sworn to on November 15, 2021 [NYSCEF Doc. No. 5]). In his Affidavit, sworn to on December 27, 2021, defendant attests that he was "home" on the dates that the process server purportedly made his CPLR § 308 (4) attempts and affixed the summons and complaint to defendant's door.
In support of defendant's motion, defendant submits Affidavits disputing the assertions made in both the November 5 and the December 13 Affidavits of Service (Defendant Affidavit, sworn to on November 15, 2021 [NYSCEF Doc. No. 5] ("Defendant's November 15 Affidavit") and Defendant Affidavit, sworn to on December 27, 2021 [NYSCEF Doc. No. 17] ("Defendant's December 27 Affidavit"). In Defendant's November 15 Affidavit, defendant disputes the service purportedly made on November 4, 2021 pursuant to CPLR § 308 (2) by claiming he was the only person home at the time of service, there was nobody living in his apartment named John Irizarry and he does not have a relative with that name, and he found the summons and complaint taped to his door but prior thereto there was neither a knock on the door nor did he hear a doorbell ring. Defendant further attests that the process server failed to actually serve him on grounds that the description provided of 'John Irizarry' does not comport with defendant's appearance. In Defendant's December 27 Affidavit, defendant disputes the service purportedly made on December 10, 2021. Defendant attests that at the dates and times of the alleged prior attempts and on the day of affixation, defendant was home with his son (with a description of their activities), and did not hear a doorbell ring or a knock on the door.
In the Meisel Affidavit, Meisel contends that while attempting service in December 2021, he rang the doorbell on the attempted service dates but that nobody answered.
Defendant's Affidavits "sufficiently rebut[ ] the presumption of service" created by the subject Affidavits of Service (HSBC Bank USA, N.A. v Russo, 202 A.D.3d 647, 647 [1st Dept 2022]; see NYCTL 2012-A Trust v Colbert, 146 A.D.3d 482, 483 [1st Dept 2017]). As such, a traverse hearing is warranted.
On the basis of the foregoing it is
ORDERED, that the motion is granted to the extent of directing a traverse hearing on the issue of personal service on defendant Edward Irizarry; and it is further
ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated to hear and report to this court on the issue of personal service on defendant Edward Irizarry; and it is further
ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119, 646-386-3028 or spref@nycourts.gov) for placement at the earliest possible date upon the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are posted on the website of this court at www.nycourts.gov/supctmanh at the "References" link), shall assign this matter at the initial appearance to an available JHO/Special Referee to hear and report as specified above; and it is further
ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules for the Trial Courts.