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April 28, 2003


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.


Plaintiff Anthony Sartor ("Sartor") brought this action under the Court's diversity jurisdiction against defendants Utica Taxi Center, Inc. ("Utica"), Pierre Toussaint ("Toussaint") and Julien Mesamours ("Mesamours") (collectively, "Defendants"), asserting claims for personal injuries Sartor sustained during a collision in Manhattan between his truck and a taxi driven by Mesamours. The taxi was registered in the name of Toussaint and leased or garaged by Utica. None of the defendants answered the complaint within the statutorily allotted time frame.

Following the Court's entry of a default judgment awarding $100,000 to Sartor after an inquest on damages, Mesamours and Toussaint appeared by counsel for their insurer, American Transit Insurance Company ("ATIC"), and moved to vacate the judgment. Defendants alleged, in separate affidavits addressed to the Court, that neither of them had received service of process in this action. (See Affidavit of Julien Mesamours dated April 30, 2001 ("Mesamours Aff.") and Affidavit of Pierre Toussaint dated May 2, 2001 ("Toussaint Aff."), attached to Joint Appendix, Record on Appeal in Sartor v. Toussaint, No. 01-9194 (2d Cir. 2001) ("JA"), at A-52-53, A-57-58).*fn1 In response, the Court conducted an evidentiary hearing on August 15, 2001 (the "Hearing") to consider Defendants' motion. Mesamours and Sartor's process server, Brenton Palmer ("Palmer"), testified at the Hearing.*fn2 Based on the record at the Hearing, and the related documents the parties submitted in that regard, the Court denied Defendants' motion and reaffirmed the default judgment by Order dated September 28, 2001. The grounds for the ruling were stated on the record at the Court's conference with the parties on October 12, 2001. (See Sartor v. Utica Taxi Ctr., Inc., No. 01 Civ. 0407 (S.D.N.Y. October 12, 2001), attached to JA at A-239-245.)

On Defendants' appeal, the Second Circuit vacated the default judgment, and remanded for a determination regarding two issues: (1) whether the process served by Palmer on Mesamours satisfied the standard of due diligence prescribed by New York Civil Practice Law and Rules ("CPLR") 308(4) and thus complied with New York law; and (2) whether Palmer's service on Toussaint complied with CPLR 308(2). See Sartor v. Utica Taxi Ctr., Inc., 2002 U.S. App. LEXIS 18619, at *9 (2d Cir. Sept. 6, 2002). This Court invited the parties to submit responsive briefs. Having reviewed and considered the questions posed by the Circuit Court in light of the prior record, the submissions on remand and the applicable law, for the reasons discussed below the Court's judgment is reaffirmed and reinstated.



Palmer testified at the Court's Hearing that, as he had attested in his affidavit of service (see Affidavit of Service of Brenton Palmer dated February 21, 2001) ("Palmer Aff. I"), attached to JA at A-51), he attempted on three separate occasions to serve the summons and complaint on Mesamours at his home address in Brooklyn — on Friday, January 19, 2001 at 8:45 p.m.; on Wednesday, January 24, 2001 at 7:00 a.m. and on Tuesday, February 20, 2001 at 6:40 p.m. He described Mesamours's residence as located on the first floor of a three-story building at 1235 East 35th Street, Brooklyn, New York. The premises contained a front door leading to a small vestibule in which there were mailboxes, as well buzzers used to allow entrance past a locked glass door that barred access to an inner hallway leading to the apartments. According to Palmer, during each visit he rang Mesamours's bell in the lobby and received no answer. On his third attempt, while in the outer lobby, he encountered a neighbor, identified as Mr. Francis, who confirmed that Mesamours lived at that address but would not divulge Mesamours's place of business. (See Palmer Aff. I, JA at A-51.) Having obtained no response to his pressing of Mesamours's buzzer, Palmer affixed the summons and complaint to the door of the premises and sent a copy of the papers to him at that address by first class regular mail or. February 21, 2001.

On the basis of the documentary evidence the parties presented, the quality of the testimony given by the witnesses at the hearing, and its observation of their demeanor, the Court credited Palmer's account and concluded that Palmer had served the summons and complaint as he had attested and reaffirmed at the Hearing, and that Mesamours had received the papers. Palmer's description of the premises matched that of Mesamours in all material respects. The Court noted in Mesamours's version of the events certain inconsistencies and apparent hedging that rendered some aspects of his testimony less than candid. For example, he denied having received either the summons and complaint Palmer asserted he left at Mesamours' residence or the copy mailed to him. He also testified that he first became aware of this lawsuit when informed about it at ATIC's offices, which apparently sent the default judgment to him by mail, prompting Palmer to take the document to ATIC. But he also stated that he received documents related to this case through the mail: "About twice. Two different things." (Transcript of the Evidentiary Hearing on August 15, 2001 ("Tr."), attached to JA, at A-142, A-181-183.) He testified that he did not remember precisely when he received these documents but that it was sometime in 2001 about two or three weeks apart. (See id. at A-182-183.) He acknowledged having opened the envelopes and described the content of one of them as a legal document that he understood to say on it that "I was sued by like the driver, the truck driver. It got something that suit against Mesamours. Sartor against Mesamours." (Id. at 183.) It is reasonable to infer that the papers to which Mesamours referred in this statement and which he admitted having received in the mail at home on one of the two occasions he mentioned, are the summons and complaint in this action, lending some credence to Palmer's testimony that he mailed those documents to Mesamours's residence on February 21, 2001.

Moreover, while Mesamours asserted in his affidavit on each of the three occasions that Palmer alleged he attempted service both Mesamours and his wife were at home, at the hearing he testified that he was at home only on two of those instances because he regularly leaves for work at 4:00 a.m., and that his wife, who was employed in Long Island, worked a shift that commenced at 3:00 p.m., so that on weekdays she ordinarily would not be home in the evenings. (See id. at A-136-137; Mesamours Aff., JA at A-30.)

Palmer also testified about speaking to a person in the inner lobby on his third attempt to serve Mesamours, presumably the neighbor he identified in his Affidavit of Service as "Mr. Francis." This testimony has some bearing here both for the details it supplies that enhance the quality of Palmer's evidence, lending credibility to his version of the facts, and for its connection the precise issue now before the Court: the extent of due diligence Palmer exercised prior to resorting to service of process by the "affix and mail" procedure permitted under CPLR 308(4).

Mesamours argues that Palmer's purported "affix and mail" service here failed to satisfy the requirements of CPLR 308(4) and thus was insufficient as a matter of law because Palmer's efforts fell short of the requisite level of due diligence. Specifically, according to Mesamours, there is no indication that anyone physically denied Palmer access to the inner doorway of the premises, or that Palmer sought to gain such entrance, requiring him to affix the service papers to the inner lobby door rather than to Mesamours's apartment door. Moreover, Mesamours contends that if service at defendant's residence is unsuccessful, the "affix and mail" procedure allowed under CPLR 308(4) is not available unless personal service has also been attempted at defendant's actual place of business. Mesamours points out that Sartor was aware of Palmer's place of business at Utica because he made reference to it in the complaint but that Palmer made no effort to serve Mesamours there.

In support of this proposition, Mesamours cites several Appellate Division cases from the Second Department, which hold that three attempts by a process server to effectuate service did not constitute sufficient due diligence to authorize affix and mail service pursuant to CPLR § 308(4) where there was no showing that the server had endeavored to ascertain defendant's place of business or to serve the papers there. See, e.g., Gurevitch v. Goodman, 702 N.Y.S.2d 634 (App. Div.2d Dep't 2000); (declaring that service pursuant to CPLR 308(4) may only be used in those instances where service under CPLR 308(1) and (2) cannot be made with "due diligence"); Silber v. Stein, 731 N.Y.S.2d 227 (App. Div.2d Dep't 2001); Moran v. Harting, 622 N.Y.S.2d 121 (App. Div.2d Dep't 1995); McNeeley v. Harrison, 617 N.Y.S.2d 879 (App. Div.2d Dep't 1994); Pizzolo v. Monaco, 588 N.Y.S.2d 910 (App. Div.2d Dep't 1992); Steltzer v. Eason, 517 N.Y.S.2d 193 (App. Div.2d Dep't 1987); see also Reed Hldgs. Inc. v. O.P.C. Corp., 122 F.R.D. 441, 443 (S.D.N.Y. 1988); Barnes v. City of New York, 416 N.Y.S.2d 52, 53 (App. Div.2d Dep't 1979), aff'd, 415 N.E.2d 979, 980 (N.Y. 1980).

Mesamours "s sole reliance on Second Department authority, with only one exception*fn3, to support his contention is not surprising or coincidental, nor does it necessarily reflect absence of other precedents. Rather, it reveals, as the Second Circuit observed in reviewing this case, that New York case law "is not . . . wholly consistent on this point." Sartor, 2002 U.S. App. LEXIS 18619, at *2 (citing cases illustrating this inconsistency)

The New York Court of Appeals addressed this point, albeit cryptically, in Barnes, 415 N.E.2d at 980, the case on which the Second Department doctrine described above is grounded. Though affirming the Appellate Division, the Court of Appeals effectively qualified the ruling, using the occasion to "note in passing" that it did not "construe the determination of the Appellate Division as having laid down any hard rule of law." Id. More significantly, the court added that: ...

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