Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
PUCCIO v. TOWN OF OYSTER BAY
November 1, 2002
DEBRA J. PUCCIO, PLAINTIFF,
TOWN OF OYSTER BAY, LEONARD KUNZIG, GARY BLANCHARD, AND KENNETH BOYCE, DEFENDANTS.
The opinion of the court was delivered by: Spatt, District Judge.
DECISION AND ORDER
The following facts are taken from the complaint. In July 1998, the
plaintiff's real estate agent took the plaintiff and her husband to see a
recently refurbished home located at 32 Midway Drive (the "house") in
Plainview, New York. At that time, the house had undergone major
renovations which were nearly completed. After the plaintiff and her
husband made an inspection of the house, they made a verbal bid to their
real estate agent, who then relayed that bid to Kunzig, the seller's
broker. The sellers of the house accepted their bid.
On the following day, the plaintiff and her husband returned to the
house to sign a binder and to leave a "good faith" check. During that
visit, the plaintiff alleges that for the first time, she and her husband
noticed that the basement smelled damp and the floor and walls appeared
wet. They told their real estate agent that they wanted the basement
waterproofed prior to the sale. The agent informed the couple that the
sellers had refused their request to waterproof the basement and that,
consequently, the sellers had accepted a second offer on the house. The
agent suggested that the plaintiff and her husband contact Kunzig
directly to further convey their interest in the house.
Shortly thereafter, the plaintiff's husband telephoned Kunzig. During
the conversation, Kunzig allegedly informed the plaintiff's husband that
the Town's building inspector inspected the house on several occasions
and assured him that the house was properly built and in conformance with
building codes and regulations. At that time, neither the plaintiff nor
her husband were aware that Kunzig was the Assistant Controller of the
Town and that Kunzig had promised the builder of the house that he would
make sure that the paperwork for the house "got pushed through" the
Town's Planning and Development Department.
The plaintiff alleges that the Town's files revealed that the
Town-approved blueprint for the house did not conform with the actual
layout of the house. Further, the plaintiff alleges that an inspection
of the house revealed that (1) support beams were not secured and
improperly spaced; (2) the chimney was too short causing carbon monoxide
to back into the house; and (3) a room in the basement was filled with
building debris, including asbestos. The plaintiff claims that Blanchard
was the Town building inspector assigned to inspect the house. Also, the
plaintiff alleges that no documents were in the Town's files that
demonstrated that a plumbing permit was ever issued for the house.
According to the complaint, the Town employed Boyce as a plumbing
inspector to inspect and perform the plumbing work on the house.
The plaintiff asserts that the individual defendants are members of the
local republican party and that they are all life-long friends. The
complaint indicates that Kunzig was instrumental in helping Boyce obtain
his position as a plumbing inspector for the Town and in helping him
obtain the plumbing contract on the house. Further, the plaintiff claims
that Kunzig used his position as a Town official and was paid a sum of
$2,000 to "expedite plans and permits" for the house.
A. Personal Jurisdiction over Kunzig
Kunzig contends that this Court never obtained jurisdiction over him
because a summons was not mailed to him at his actual place of business
or residence. An individual may be served pursuant to the law of the
forum state. Fed.R.Civ.P. 4(e)(1). In New York, service upon a natural
person is governed by Section 308 of the New York Civil Practice Law and
Rules which provides, in pertinent part, that:
Personal service upon a natural person shall be made
. . . by delivering the summons within the state to a
person of suitable age and discretion at the actual
place of business . . . of the person to be served
and by mailing the summons to the person to be served
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 . . ., such
delivery and mailing to be effected within twenty days
of each other . . . .
N.Y.C.P.L.R. § 308(2) (McKinney 2000) (emphasis added). Both the
delivery and the mailing are required. Id. In the present case,
although a summons and complaint was delivered to a person of suitable
age and discretion at Kunzig's place of employment, the affidavit of
service does not indicate that a subsequent mailing occurred. In
addition, Puccio does not allege that the summons ...
Buy This Entire Record For