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Dezonie v. Asset Protection & Security

June 30, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge


Defendants Asset Protection & Security, Inc. ("Asset Protection") and William Golowach ("Golowach") move to dismiss the complaint filed against them by Plaintiff Hank Dezonie ("Plaintiff") pursuant to Fed. R. Civ. P. 12(b)(5) for improper service of process. I held a traverse hearing on June 22, 2009, and I heard testimony from both the process server and the Asset Protection employee who was allegedly served on February 27, 2009. For the reasons that follow, Defendants' motion to dismiss is GRANTED with respect to Golowach and DENIED with respect to Asset Protection.


On December 24, 2009, Plaintiff filed this employment discrimination action against Asset Protection, a security services firm and his former employer, and Golowach, a supervisor at the company. On February 26, 2009, a few hours before the Rule 16 conference that had been scheduled for more than a month and half, Plaintiff's counsel wrote to the Court to request an adjournment because he "did not receive an affidavit of service from the process server that service of process has been made." I granted the requested adjournment. The next day, Plaintiff's counsel sent his son, Stephen E. Jackson ("Jackson"), who he employs as a paralegal and who had experience serving legal papers, to 201 Varick Street in Manhattan to serve a summons and complaint on Asset Protection and Golowach.*fn1 (Tr. of June 22, 2009 Hearing ("Tr.") at 2-3.) Jackson testified that when he arrived at the building on Varick Street he passed through security, told a security guard he was looking for Asset Protection, and was directed to the fourth floor. (Id. at 3.)

The testimony of the two witnesses, Jackson and Edmister, as towhat transpired on the fourth floor varies significantly, and so I recount each version of eventsin turn. Jackson testified that when he arrived on the fourth floor, he joined a group of people who were waiting in line to speak to a security guard who was sitting at a desk and wearing a uniform distinct from that worn by the guard he had encountered on the first floor. According to Jackson, when he approached the desk he told the guard that he worked for a law firm and was there to serve a summons and complaint. (Id. at 3-4.) In Jackson's account, the guard then picked up the phone and said "hold on. We will get somebody that could [sic] take it." (Id. at 4.) Shortly thereafter, awoman who Jackson understood to beCaptain Linda Edmister ("Edmister") arrived in the fourth floor lobby. According to Jackson's testimony, Edmister asked him what he had and Jackson showed her two summonses and twocomplaints, which he carried in an unsealed manila file, and told her he was there to serve a summons and complaint on Asset Protection and Golowach. (Id. at 5, 10.) Jackson testified that Edmister looked at one of the sets of summons and complaints and "said she can accept them" (Id.) Jackson then returned to his father's office and completed an affidavit of service, but he did not mail the affidavit or a copy of the complaint. (Id. at 7, 9, 11.)

Edmister, who is a "transportation manager" for Asset Protection and at the relevant time was responsible for "schedules and administrative tasks for Asset Protection as it relates to 201 Varick Street," testified differently. According to Edmister, she was called out to the front desk on the fourth floor to "sign for some papers because the mail clerk was unavailable." (Id. at 13.) In Edmister's account, Jackson handed her a sealed manila envelope with the names Asset Protection and William Golowach on it and she said she could sign for the envelope but did not open it. (Id. at 13, 16.) Edmister testified on cross examination that Jackson never said a word to her, that the summonses and complaints were sealed in an envelope and that she did not see the contents until she called Golowach into her office and he opened it in her presence. (Id. at 16-17.)

The day after Jackson left the summons and complaint with Edmister at 201 Varick Street, February 27, 2009, an unsigned and un-notarized affidavit of service was electronically filed in this case. The affidavit of service, which was prepared for signature by Jackson and to be notarized by his father, states that Jackson "served the defendants with the summons and complaint on Captain Linda Edmister at 201 Varick Street . . . [and] Captain Edmister indicated that she was authorized to accept service on behalf of defendants." Plaintiff's counsel has notdelivered to the Clerk of Court the original affidavit of service with the summons and a copy of the electronic filing receipt attached, as is required by this District's Electronic Case Filing Rules & Instructions. Plaintiff's counsel stated that he did not bring the original affidavit of service to the traverse hearing as a consequence of a miscommunication with his office and an earlier appearance in the Bronx. (Id. at 20.) Earlier today, Plaintiff's counsel faxed to my Chambers a signed copy of the affidavit of service.


The plaintiff bears the burden of proving adequate service. See J.G. ex rel. J.G. v. Board of Educ. of Briarcliff Manor Union Free School Dist., No. 07 Civ. 7245 (KMK), 2008 WL 3843523, * 2 (S.D.N.Y. Aug. 14, 2008). To satisfy this burden, "[c]onclusory statements that a defendant was properly served are insufficient to overcome a defendant's sworn affidavit that he was never served." Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y. 1997), aff'd, 173 F .3d 844 (2d Cir.1999). Similarly, defective service is not cured or overcome "on the mere assertion that a defendant had actual notice." J.G. ex rel. J.G, 2008 WL 3843523, * 2 (quoting Weston Funding, LLC v. Consorcio G Grupo Dina, S.A. de C .V., 451 F.Supp.2d 585, 589 (S.D.N.Y. 2006)).


A. Service on Golowach

Pursuant to Rule 4(e), an individual defendant may be served personally, by leaving a copy of the summons and complaint "at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there," or under New York law, which is applicable here, by an additional two-step method. Pursuant to N.Y. C.P.L.R. § 308(2) a natural person may be served by 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 either 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 in an envelope bearing the legend "personal and confidential" . . . within twenty days of [the delivery].

N.Y. C.P.L.R. §308(2).

Here, Edmister's testimony makes clear that 201 Varick Street was Golowach's "actual place of business."*fn2 However, there is no indication whatsoever that Plaintiff complied with the second-step of service pursuant to N.Y. C.P.L.R. ยง308(2) by mailing the summons and complaint to Golowach either at his last known residence or at 201 Varick Street. The unsigned affidavit of service does not state that the process was ...

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