Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), dated March 2, 2010.
University of Bridgeport v Emengo
Decided on January 24, 2012
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: GOLIA, J.P., WESTON and RIOS, JJ
The order, insofar as appealed from as limited by the brief, denied defendant's motion to vacate a default judgment and for a traverse hearing.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a traverse hearing, and, thereupon, for a new determination of defendant's motion, limited to the issue of whether jurisdiction was ever acquired over defendant.
The affidavit of plaintiff's process server stated that he had served
defendant with the summons and complaint in this action pursuant to
CPLR 308 (4) first by attempting to deliver the summons on three
separate occasions, and thereafter by affixing a copy thereof to the
door of defendant's "usual place of abode" at 1151 East 101 Street,
Brooklyn, New York, and mailing a copy in an envelope marked "personal
& confidential" to defendant at the above address, which was described as
defendant's "last known address." Following defendant's failure to appear or to
answer the complaint, upon application by plaintiff's attorney, the clerk of the court
entered a default judgment against defendant in the principal sum of $15,249.84. After
an information subpoena had been delivered to defendant's employer in Long Island City,
New York, and a garnishment commenced against defendant's wages, defendant moved to,
among other things, vacate the default judgment, on the alternative grounds that she had never
been served with the summons and complaint, and, in any event, that her default had been excusable
and she had a meritorious defense.
In the case of substituted service under CPLR 308 (4), strict compliance is mandated with the requirement of delivery to a defendant's "actual place of business, dwelling place or usual place of abode" (see Feinstein v Bergner, 48 NY2d 234, 240-241 ). Where the home of a defendant's parents is the defendant's "last known residence," substituted service at such address is nevertheless inadequate if it is not the defendant's "dwelling place or usual place of abode" at the time of service (id. at 241).
The process server has an affirmative duty to make genuine inquiries to ascertain a defendant's whereabouts (Estate of Edward S. Waterman v Jones, 46 AD3d 63 ; County of Nassau v Letosky, 34 AD3d 414 ), failing which the service may be invalid. A process server's affidavit creates a presumption of proper service (e.g. Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327 ; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983 ).
Although, in his affidavit, the process server recited that he had complied with CPLR 308 (4), defendant effectively challenged the factual underpinnings of the process server's affidavit. In her reply affidavit, defendant refuted the contents of the affidavit of service by stating that at the time of service she resided at 355 California Avenue, Uniondale, New York, and not at the Brooklyn, New York address at which service had purportedly been made. In a second reply affidavit, defendant's father, Benedict Emengo, asserted that he lived at the Brooklyn address where service had ostensibly been made, and that defendant did not live at that address on the date of the alleged service. He added that he had been present there on the date and at the time when the process server claimed to have sought defendant and to have left the summons and complaint, that there had been no attempt at service, and that a copy of the summons and complaint had not been affixed to the door. Whereas the process server stated in his affidavit of service that he had spoken to a neighbor named Jane Houghton to ascertain that defendant lived at the Brooklyn address, in his affidavit, Benedict Emengo denied that he had such a neighbor. Plaintiff responded to the assertions contained in defendant's reply papers, submitting an attorney's affirmation, two affidavits, and a copy of a paper which indicated that, as of April 14, 2009, defendant was "not known" to the Uniondale postmaster at the Uniondale address where she and her father claimed she had lived as of the 2007 service date. In light of these sharp factual disputes as to the validity of service upon defendant, we conclude that the Civil Court erred in failing to hold a traverse hearing to resolve the threshold issue of personal service.
We note that, in the event it is determined that jurisdiction was obtained over defendant, there is no basis for vacating the default judgment against her, as she failed to establish the existence of a meritorious defense, as required under CPLR 317 and 5015 (a) (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 ).
Accordingly, the order, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a traverse hearing, and, thereupon, for a new determination of defendant's motion, limited to the issue ...