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Foster Construction Management, LLC v. Seerattan

Sup Ct, New York County

July 16, 2013

FOSTER CONSTRUCTION MANAGEMENT, LLC, Plaintiff,
v.
TILLACKDHARRY SEERATTAN, SILOCHNI SEERATTAN, BOBBIE DE LUX, LLC f/k/a UNIQUE KITCHEN, LLC and SEERATTAN ENTERPRISES, LLC f/k/a UNIQUE KITCHEN AND BATHS, LLC, Defendants. Index No. 653255/2012 Mot. Seq. No. 001

Unpublished Opinion

DECISION AND ORDER

O. PETER SHERWOOD, J

This action arises from plaintiffs purchase of defendants' cabinet-making business. Before the court is plaintiffs motion for an order pursuant to CPLR 3215 granting a default judgment in its favor against defendants upon the first, second, third, fourth, fifth and sixth causes of action in the verified complaint, alleging, respectively, breach of contract, fraud, unjust enrichment, promissory estoppel, conversion and declaratory judgment, and awarding damages in the amount of $425, 000.00, based upon the defendants' failure to timely appear or answer. The motion is unopposed. For the reasons that follow, the motion is denied.

On September 18, 2012, plaintiff commenced the instant action against defendants by the filing of a summons and verified complaint to recover, inter alia, the sum of $425, 000.00. An affidavit of service, annexed to the moving papers as Exhibit "B", indicates that service of the summons and verified complaint was made upon defendant TiHackdharry Seerattan on September 27, 2012, at 11:20 a.m., pursuant to CPLR 308 (2), by delivering the summons and verified complaint to Vash Seerattan (Tillackdharry Seerattan's nephew), a person of suitable age and discretion, at 92-30 173rd Street, Jamaica, New York 11433. Similarly, an affidavit of service, annexed to the moving papers as Exhibit "C", indicates that service of the summons and verified complaint was made upon defendant Silochni Seerattan on September 27, 2012, at 11:20 a.m., pursuant to CPLR 308 (2), by delivering the summons and verified complaint to Vash Seerattan (Silochni Seerattan's son), a person of suitable age and discretion, at 92-30 173rd Street, Jamaica, New York 11433.

CPLR 308 (2), commonly known as "deliver and mail" service, allows personal service upon a natural person to be made, as relevant for the purposes of this motion,

"by delivering the summons ... to a person of suitable age and discretion at the . . . dwelling place or usual place of abode of the person to be served and by . . . mailing the summons to the person to be served at his or her last known residence . . . in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing"

(CPLR 308 [2]). "CPLR 308 (2) requires strict compliance" {Samuel v Brooklyn Hosp. Or., 88 A.D.3d 979, 980 [2d Dept 2011]). "Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court" (Macchia v Russo, 67 N.Y.2d 592, 595 [1986]). Furthermore, "[w]hen the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents" (Raschel v Rish, 69 N.Y.2d 694, 697 [1986]).

Here, the affidavits of service annexed to the moving papers do not indicate that either Tillackdharry Seerattan or Silochni Seerattan were mailed a copy of the summons within twenty days of the delivery of the summons to Vash Seerattan, as required by CPLR 308 (2). The Court, however, has reviewed the electronic docket on the New York State Courts Electronic Filing ("NYSCEF") system, and discovered that on November 15, 2012 plaintiffs attorney filed a "Certification of Service, " dated September 17, 2012, wherein he indicates that on September 17, 2012, he mailed copies of the summons to Tillackdharry Seerattan, Silochni Seerattan, Seerattan Enterprises LLC and Bobbie De Lux LLC (NYSCEF Doc. No. 9, Ex. F). Proof of service upon Tillackdharry Seerattan and Silochni Seerattan was required to be filed within twenty days after delivery of the summons to Vash Seerattan, that is, by October 17, 2012 (CPLR 308 [2]). Although plaintiff initially filed affidavits of service as to Tillackdharry Seerattan and Silochni Seerattan on October 1, 2012 (NYSCEF Doc. Nos. 4-5), these affidavits do not indicate that copies of the summons were mailed. Accordingly, plaintiffs completed filing of the proof of service on November 15, 2012 was late.

The failure to timely file proof of service is not a jurisdictional defect but, rather, "is a curable procedural irregularity" (Zareefv Lin Wong, 61 A.D.3d 749, 749 [2d Dept 2009]; see also Discover Bank v Eschwege, 71 A.D.3d 1413, 1414 [4th Dept 2010]). Where a plaintiff fails to timely file proof of service and does not obtain an order permitting a late filing, the late filing is a nullity, "and the defendants' time to answer never began to run" (Zareef, 61 A.D.3d at 749).[1] In such a circumstance, "the defendants never defaulted, " and the plaintiffs motion for a default judgment must be denied (id.) The Court, however, sua sponte, in its exercise of discretion, permits the late filing of the proof of service nunc pro tunc, pursuant to CPLR 2001 (Discover Bank, 71 A.D.3d at 1414). Since the Court cannot "ma[ke] that relief retroactive to defendants' prejudice by placing defendants in default as of a date prior to the order" (Rosato v Ricciardi, 174 A.D.2d 937, 938 [3d Dept 1991]), defendants Tillackdharry Seerattan and Silochni Seerattan are granted thirty (30) days from service of this decision and order with notice of entry to serve and file an answer, or to otherwise move with respect to the complaint.

The motion for a default judgment must also be denied as to defendant Bobbie De Lux LLC. Plaintiff served Bobbie De Lux LLC by personal delivery to the Secretary of State, pursuant to Limited Liability Company Law § 303. In order to obtain a default judgment, plaintiff was required to submit an affidavit stating "that an additional service of the summons by first class mail has been made upon the defendant [LLC] at its last known address at least twenty days before the entry of judgment" (CPLR 3215 [g] [4] [i]).[2] "The additional service of the summons by mail may be made simultaneously with or after the service of the summons on the defendant" LLC (CPLR 3215 [g] [4] [ii]) (emphasis added). In an "Affirmation of Additional Notice and Mailing" attached to the moving papers as Exhibit "F", plaintiffs attorney attests that the additional mailing was made to Bobbie De Lux LLC on September 17, 2012, prior to the time personal delivery was made to the Secretary of State on October 9, 2012, and not "simultaneous with or after the service of the summons, " as required by CPLR 3215 (g) (4) (ii). Since plaintiff has not complied with the additional notice requirement of CPLR 3215 (g) (4), the motion for a default judgment as to defendant Bobbie De Lux LLC is denied. Defendant Bobbie Dex Lux LLC is granted thirty (30) days to answer or to otherwise move with respect to the complaint upon service of a copy of this decision and order with notice of entry.

Defendant Seerattan Enterprises LLC was served pursuant to CPLR 311 -a, by personal delivery of the summons and complaint to Nevin Persaud, who is described in the affidavit of service annexed to the moving papers as Exhibit "E", as an employee and "person authorized to accept service on behalf of the company or agency." Although it appears that Seerattan Enterprises LLC was properly served, the Court, in its exercise of discretion, denies the motion for a default judgment as to this defendant, because the plaintiff failed to properly obtain a default judgment as against the other three defendants. Seerattan Enterprises LLC is granted thirty (30) days to answer or to otherwise move with respect to the complaint upon service of a copy of this decision and order with notice of entry.

The Court notes that defendants Bobbie De Lux LLC and Seerattan Enterprises LLC must appear by counsel, and may not appear pro se {Michael Reilly Design, Inc., 40 A.D.3d at 593-594 ["like a corporation or a voluntary association, [an] LLC may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York"]; seeCPLR321 [a]).

Accordingly, it is hereby

ORDERED that plaintiffs motion for a default judgment is DENIED; and it is further

ORDERED that plaintiff shall serve a copy of this order with notice of entry upon all defendants within twenty (20) days of the date of entry of this order; and it is further

ORDERED that defendants Tillackdharry Seerattan, Silochni Seerattan, Bobbie De Lux LLC and Seerattan Enterprises LLC shall file and serve an answer, or otherwise move with respect to the complaint, within thirty (30) days after service of a copy of this order with notice of entry.

This constitutes the decision and order of the Court.


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