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Pan Am Equities, Inc. v. Consulting Associate of NY, Inc.

Sup Ct, NY County

June 26, 2013

PAN AM EQUITIES, INC., NEWMARK KNIGHT FRANK GLOBAL MANAGEMENT SERVICES LLC, MOORE STREET DEVELOPERS LLC, and WHITEHALL PROPERTIES LLC, Plaintiff,
v.
CONSULTING ASSOCIATE OF NY, INC., ALUMILEX, INC., CLEARVIEW ARCHITECTURAL, INC. d/b/a CLEARVIEW GLASS ENTERPRISES, FAI ENGINEERING GROUP, P.C, and ROMEO FRACCAROLI, P.E., Defendants. Index No. 156085/2012

Unpublished Opinion

HON. EILEEN A. RAKOWER, J.

The following papers, numbered 1 to _____ were read on this motion for/to

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ...................1, 2. 3

Answer — Affidavits — Exhibits....................... 4

Replying Affidavits..................... 5

This is in action for negligence and breach of contract in connection with Plaintiffs' residential conversion of a building located at 2 New York Plaza, New York County ("the Project"). Plaintiffs allege that certain "replaced/retrofitted windows" installed on the Project, allegedly supplied or fitted by the defendants are defective. As against defendants FAI Engineering Group, P.C. ("FAI") and Rocco Fraccaroli, P.E. (collectively, "FAI Defendants"), the Complaint alleges that they "fail[ed] to properly perform design services and calculations for the replacement window system."

FAI Defendants now move for an Order to dismiss the Complaint, pursuant to CPLR§§§ 3211(a)(5), (a)(7), and (a)(8), on the basis that the Court lacks jurisdiction over either FAI Defendant and the causes of action against them are time barred. FAI Defendants submit the affidavits of Linda Fraccaroli and Romeo Fraccaroli, P.E.

Plaintiffs oppose. Plaintiffs submit the attorney affirmation of Steven Cramer and Nehad Moughrabi, a property manager for Plaintiffs since November 2009.

FAI Defendants contend that Plaintiffs failed to effectuate service on them. CPLR §311 provides that a foreign corporation, like FAI, may be served by delivering the summons to an officer, director or other agent. CPLR §308 provides that a person may be served on a person of suitable age and discretion at the business or "usual place of abode" of the defendant, provided that the process server then mails the documents to the defendant.

According to Plaintiffs' Affidavit of Service as to FAI, the Supplemental Summons and Complaint was served on FAI "by delivering a true copy of each to Lina Fraccaroli, Managing Agent/Authorized of [FAI]" at 36 Clinton Avenue, Norwalk, CT 06854 on February 14, 2013. The process server states that he "asked the recipient if he/she is authorized to accept service of behalf of FAI, and the recipient responded in the affirmative." FAI alleges that it has never maintained offices at that location, Ms. Fraccaroli was not present at 36 Clinton Avenue at any time on December 31, 2012, and she was not authorized to accept service on behalf of FAI nor did she tell Plaintiffs'process service that she was so authorized. FAI also states that while Ms. Fraccaroli is described as 43 in the Affidavit of Service, she is 30.

According to Plaintiffs' Affidavit of Service as to Mr. Fraccaroli, the Supplemental Summons and Complaint was served on Mr. Fraccaroli by serving Lina Fraccaroli (again described as 43 years old) at 36 Clinton Avenue, Norwalk, Connecticut, Lina Fraccaroli's "usual place of abode within the state." Defendants state that 36 Clinton Avenue is not, and has never been, Romeo Fraccaroli's, "actual place of business, dwelling place, or usual place of abode" as required by CPLR §308(2) nor is it the residence or business premises.

In opposition, Plaintiffs contend that there was a typographical error in the affidavit of service as to the address where service was rendered, but that Plaintiffs re-served them on March 21, 2013. However, in their reply, Defendants argue that Plaintiffs first commenced this action on September 5, 2012 when they purchased their index number and filed their Summons with Notice, and their subsequent second efforts are service are not timely because they occurred more than 120 days after the that date. Defendants contend that the filing of Plaintiffs' Supplemental Summons' on December 14, 2012 does not change that the action was commenced on September 5, 2013. Furthermore, Defendants contend that Plaintiffs' Supplemental Summons was not ...


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