Borja v. Moshouris, 2007 NY Slip Op 32534(U) (N.Y. Sup. Ct. 8/8/2007)
| Decision Date | 08 August 2007 |
| Docket Number | No. 0006736/2006.,0006736/2006. |
| Citation | 2007 NY Slip Op 32534 |
| Parties | SONIA BORJA and CARLOS LENIS, Plaintiffs, v. IONANNIS MOSHOURIS and ABC CORP., Defendants. |
| Court | New York Supreme Court |
This is an action to recover damages for personal injuries allegedly sustained by plaintiffs as a result of a motor vehicle accident that occurred on May 16, 2002. By order dated October 5, 2006 (Satterfield, J.), the motion by defendant loannis Moshouris ("defendant") to dismiss the action upon the ground of lack of personal jurisdiction was granted to the extent that the matter was set down for a hearing on the traverse to determine whether this Court acquired personal jurisdiction over defendants. The Traverse was held May 24, 2007, at which time plaintiff's process server, Alan Feldman ("Feldman"), defendant and Sophia Moshouris, his wife, testified. This Court has had a full opportunity to consider the evidence presented with respect to the issues in this proceeding, including the testimony offered and the exhibits received, as well as the legal arguments asserted by counsel in the underlying motion papers. The Court has further had an opportunity to observe the demeanor of the parties and witnesses called to testify and has made determinations on issues of credibility with respect to those witnesses. After Traverse, defendant's motion, inter alia, to vacate the judgment entered against him, is denied.
Where the validity of service of the summons and complaint is challenged, plaintiffs have the burden of establishing personal jurisdiction by a preponderance of the evidence at a hearing. Schwerner v. Sagonas, 28 A.D.3d 468 (2d Dept. 2006); Mortgage Access Corp. v. Webb, 11 A.D.3d 592 (2d Dept. 2004); Bankers Trust Co. of California, N.A. v. Tsoukas, 303 A.D.2d 343 (2d Dept. 2003). It is beyond dispute that "[s]ervice is only effective . . . when it is made pursuant to the appropriate method authorized by the CPLR." Markoff v. South Nassau Community Hosp., 61 N.Y.2d 283, 288 (1984); Feinstein v. Bergner, 48 N.Y.2d 234, 241 (1979); Foy v. 1120 Ave. of Americas Associates, 223 A.D.2d 232 (2nd 1996). Here, plaintiff contends that service was effected property by "nail and mail."
Section 308(1) of the CPLR specifies that personal service upon a natural person may be made by "delivering the summons within the state to the person to be served;" subdivision (2) of section 308 authorizes service "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode 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. . ." Subdivision (4), the "nail and mail" provision provides:
where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person 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 .. .
Defendant challenges the purported service on the grounds that no "nail and mail" occurred, and that even if so, the process server did not exercise due diligence prior to the alleged "nail and mail."
In the first instance, the resolution of whether, as claimed, substitute service was effectuated properly depends upon the credibility of the witnesses who testified. It is well-recognized that issues of credibility are primarily to be determined by the trier of fact who had the opportunity to view the witness, hear the testimony, and observe the demeanor. See, Cirami v. Taromina, 243 A.D.2d 437 (1997)[ that issues of credibility are primarily to be determined by the trier of fact who had the opportunity to view the witness, hear the testimony, and observe the demeanor]; Darmetta v. Ginsburg, 256 A.D.2d 498 (1998) []; Vega v. City of New York, 194 A.D.2d 537 (1993)[ that issues of credibility are properly determined by the hearing court]. Here, the testimony of the process server was credible.
Feldman testified that he attempted unsuccessfully to effect personal service at defendant's home at 27-01 Utopia Parkway, Flushing, New York, which he described as being "like a fort," adding that "it was a huge house with a huge fence around it." He further testified:
It was a corner house. It had an iron gate. It had a mailbox slot and behind the mailbox slot was a big black box behind it and it was concrete walls, like 6 feet high, like something you just couldn't forget.
He added:
I affixed the two copies on the gate on my fourth attempt to go there, one on the left side and one on the right side, I believe it was on both sides of the slot where the mail thing was, using a tape like this because it was very hard to stick, so I use this sometimes to stick. You can get a good taping on it (indicating). . . It was no way of getting in. The house was unbelievably secure. It was so high. I had to knock and bang on the gates. I screamed 'hello.' Stayed there for 10 minutes.
He also testified that he confirmed with a neighbor that he had the correct address, ascertained from that neighbor that defendant was not in the military service, affixed the summons and complaint, and thereafter mailed the summons and complaint to defendant's residence.
By contrast, defendant's testimony and that of his wife were less than probative. Mrs. Moshouri' s testimony was elicited after defendant's poor vision and irascibility rendered it difficult, if not impossible, for him to testify credibly. She confirmed that the photographs admitted into evidence as proof of the process server's description of the house were of her home. She further testified that the gate had no doorbell, that visitors usually will telephone them and the she will open the gate, which is "always locked." She further testified that she is a freelance artist and works at home. S...
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