Discover Bank v. Shields

• Decision Date: 07 December 2016
• Docket Number: No. 06–0062.,06–0062.
• Citation: 61 N.Y.S.3d 190 (Table)
• Parties: DISCOVER BANK, Plaintiff, v. Anita SHIELDS a/k/a Anita L. Martin, Defendant.
• Court: New York Supreme Court

61 N.Y.S.3d 190 (Table)

DISCOVER BANK, Plaintiff,

v.Anita SHIELDS a/k/a Anita L. Martin, Defendant.

No. 06–0062.

Supreme Court, Greene County, New York.

Dec. 7, 2016.

Carol Van Houten, Esq., Selip & Stylianou, LLP, Woodbury, for Plaintiff.

Benjamin M. Meskin, Esq. Brooklyn, for Defendant.

LISA M. FISHER, J.

Defendant moves via order to show cause to vacate the June 28, 2006 default judgment and all resultant executions asserted against her in this action, including restoration to Defendant of any monies previously garnished, and 1) for dismissal of the action, or 2) to permit Defendant to serve an answer. The grounds for dismissal are lack of personal jurisdiction for improper service.

Specifically, Defendant contends she first learned of this action in June 2016 when she received an income execution. She reviewed the filed documents in this matter and learned Plaintiff's summons and complaint was filed on February 1, 2006. The summons and complaint noted her address as being in Prattsville, New York.¹ The filed affidavit of service from Plaintiff's process server demonstrated attempted service on February 11, 2006, February 14, 2006, and February 15, 2006. On February 28, 2006, Plaintiff's process server affixed a copy of the summons and complaint to the front door of the Prattsville address and on March 1, 2006 mailed a copy of the summons and complaint to the Prattsville address.

Defendant admits to living at the Prattsville address with her then boyfriend. However, she claims that relationship became abusive and she left the Prattsville address in October 2005. She seeks to prove that with an alleged Albany Medical Center record noting her "Perm Address" under "Address Details" as being in Oak Hill, New York, and her "Guarantor Details" as providing an address in Jewett, New York; such admission was from November 25, 2005 through February 16, 2006. Thereafter, she claims she lived at a different address and uses the birth certificate of her daughter dated April 26, 2006 to demonstrate her address as being in Coxsackie, New York. After the birth of her daughter, she avers she moved back to the Jewett address. She contends the Prattsville address was not her place of "residence, usual place of abode or actual place of business" when the summons and complaint was served.

Plaintiff opposes the motion, arguing that it exercised due diligence in serving Defendant. Specifically, Plaintiff argues its process server went to the Prattsville address three times to attempt service. The process server then contacted Shelly Brainard, Town of Prattsville Deputy Town Supervisor, who confirmed the Prattsville address was Defendant's address. Plaintiff also confirmed with the United States Postal Service that Defendant's Prattsville address was proper. Thereafter, Plaintiff sent numerous correspondence—dated on September 23, 2005 through February 6, 2010—to Defendant at the Prattsville address and none of them came back as undeliverable until April 6, 2010. During this time, Plaintiff again confirmed with the United States Postal Service that Defendant's address was the Prattsville address. Therefore, Plaintiff argues the motion to dismiss should be denied as it exercised due diligence in its searches. However, it should be noted that, notwithstanding its opposition, Plaintiff has consented to Defendant vacating the default judgment and filing an answer.

Defendant submits a reply, arguing the opposition "attempts to refute" that she did not move out of the Prattsville address because a postal search yielded confirmation of her being there. But she avers "after I moved out of that premises [Prattsville] I never filed a change of address form with the local post office, as I did not wish to be found by [her ex-boyfriend] ... and instead informed all persons and business contact with whom I wished to remain in contact that I have moved and how they could contact me." In further reply, Defendant provides an affirmation of Debra Scotto, attorney and friend of Defendant, who avers the Prattsville address was a business by Defendant's ex-boyfriend which was infamously shut down in late 2008 and became in "evident disrepair."

Legal Analysis

Personal service is governed by CPLR § 308, and subdivision (4)"affix and mail" can satisfy the requirements of RPAPL § 1371(2). (See Citibank, N.A. v. Demadet, 243 A.D.2d 532, 533 [2d Dept 1997] ["Since CPLR 308 categorizes [affix and mail] as personal service, it is a permissible means of ‘personal service’ of notice of an application for leave to enter a deficiency judgment, as required by RPAPL 1372[2]."].) In order to utilize the "affix and mail" provision under CPLR § 308, a party must first demonstrate that service under subdivisions (1) and (2) cannot be made with "due diligence" (see State of N.Y. Higher Educ. Servs. Corp. v. Sparozic, 35 AD3d 1069, 1070–71 [3d Dept 2006] ). "[T]he requirement of ‘due diligence’ must be strictly observed, and ... the burden of proving due diligence rests upon the plaintiff[" ( State of N.Y. Higher Educ. Servs. Corp. v. Cacia, 235 A.D.2d 986, at 883–84 [3d Dept 1997] ).

Further, "the requirements of ‘due diligence’ in attempting to make personal service are not rigidly prescribed" ( Jacoby v. New York State Bd. for Professional Med. Conduct, 295 A.D.2d 655, 656 [3d Dept 2002] ), and the courts "have never established a precise, minimum number of attempts at service which are necessary" ( Sparozic, 35 AD3d at 1071 ). Rather, "due diligence ... refers to the quality of the efforts made to effect personal service, ... not their quantity or frequency" ( Maines Paper & Food Serv., Inc. v. Boulevard Burgers Corp., 52 AD3d 1150, 1151 [3d Dept 2008] ).

If the requirements of "due diligence" are satisfied, CPLR § 308(4) permits personal service upon a natural person 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[.]" Here, it is not contested that Plaintiff did not exercise due diligence. Nonetheless, the Court finds due diligence given four attempts on different days and at different times. (See Sparozic, 35 AD3d at 1071–72 [finding due diligence when service was attempted three times, once each in the morning, mid-morning, and evening, all on weekdays, and the process server spoke with neighbors to confirm the location]; State of N.Y. Higher Educ. Servs. Corp. v. Upshur, 252 A.D.2d 333 [3d Dept 1999] [finding due diligence when service was attempted three times, once each in the morning, mid-day, and evening, on two weekdays and one weekend day, and the process server spoke with neighbors to confirm the correct location]; Hanover New England v. MacDougall, 202 A.D.2d 724 [3d Dept 1994], lv dismissed 83 N.Y.2d 907 [1994] [finding due diligence where service was attempted three times, once each in the morning and twice in the evening, on two weekdays and one weekend day, and spread out over a span of three weeks]; Mike Lembo & Sons, Inc. v. Robinson, 99 A.D.2d 872, 873–74 [3d Dept 1984] [finding due diligence when service was attempted three different times on three different dates].)

Nor is it contended that Plaintiff did not mail the summons and complaint to Defendant's "last known address," which it is also clear that Plaintiff did so.

Rather, it is contended that Plaintiff failed to "affix" to Defendant's "actual" dwelling place or "usual place of abode." Plaintiff is correct that this is not the same as a "last known address." (See Feinberg v. Bergner, 48 N.Y.2d 234, 239 [1979] ["While there may be some question as to whether there is a distinction between ‘dwelling place’ and ‘usual place of abode’, there has never been any serious doubt that neither term may be equated with the ‘last known residence’ of the defendant."] [citations omitted; footnote omitted].)

From the record, it is clear that Defendant moved several times after leaving the Prattsville address, including with an address listed at Oak Hill, Jewett, Coxsackie, and back to Jewett in a period of about six months. The test of actual dwelling place or usual place of abode requires an address where Defendant was physically present or where she lived with a sufficient degree of "permanence and stability" at the time of service so as to satisfy either the "dwelling place or usual place of abode" (see Feinberg, 48 N.Y.2d at 239, n. 3 ). There does not appear to be any such address during the time of service, with the last address with a sufficient degree of "permanence and stability" being the Prattsville address. Moreover, the Court rejects both the alleged Albany Medical Center and birth certificate as having any probative value as both...