Doe v. Israel
| Decision Date | 25 October 2022 |
| Docket Number | 527819/2019,Motion Seq. No. 001,003,004 |
| Parties | “JOHN DOE”, Plaintiff, v. CAMP GAN ISRAEL, Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14 - 20, 23 - 27 were read on this motion to/for DISMISS
The following e-filed documents, listed by NYSCEF document number (Motion 003) 56 - 66, 75 - 77, 81 were read on this motion to/for AMEND
The following e-filed documents, listed by NYSCEF document number (Motion 004) 67-71, 78, 79 were read on this motion to/for DISMISS
Upon the foregoing documents, defendant Camp Gan Israel (CGI) moves to dismiss plaintiffs complaint for lack of personal jurisdiction based on improper service (Motion Seq. 001). Plaintiff opposes the motion and separately moves to amend the complaint to include Camp Can Israel, Inc. (CGI Inc.) (Motion Seq. 003). CGI opposes this motion.
CGI additionally moves for dismissal of the first, third, fourth fifth, and sixth causes of action in plaintiffs complaint pursuant to CPLR 3211 (a) (7) (Motion Seq. 004). Plaintiff opposes.
Plaintiff brings this action pursuant to CPLR 214-g of the Child Victims Act ("CVA"). According to the complaint plaintiff was sexually assaulted in 1992 and 1994 by camp counselors Shmuel Posner (Posner) and Motti Sandman (Sandman) while attending summer camp at CGI. The CGI camp is located at 487 Parksville Road, in the Town of Liberty, in Sullivan County, New York (the Parksville Rd address) with a principal place of business located at 770 Eastern Parkway, Kings County, New York (the Eastern Pkwy address). At the time of the alleged abuse, plaintiff was approximately nine and eleven years old. As a result of this sexual abuse, plaintiff asserts in the complaint (1) negligent hiring, retention supervision, and direction; (2) negligence and gross negligence; (3) breach of non-delegable duty; (4) breach of fiduciary duty; (5) negligent infliction of emotional distress (NIED); (6) breach of duty in loco parentis.
Plaintiff filed the complaint on December 23, 2019. Plaintiff then attempted to serve CGI at the Eastern Pkwy address on February 11, 2020, at 8:14pm, February 12, 2020, at 6:45am, and February 17, 2020, at 5:06pm. After those unsuccessful attempts of personal delivery, plaintiff served CGI by "nail and mail" at the above address. Plaintiffs process server affixed the summons and complaint to CGI's door on February 17, 2020 and mailed a copy to CGI on February 18, 2020.
CGI filed an answer containing the affirmative defense of improper service and moved to dismiss for as much on May 22, 2020. CGI argues that plaintiff was required to serve them pursuant to CPLR 311 (a) since they have been incorporated in Pennsylvania since 1976. According to defendant, pursuant to CPLR 311, plaintiff was required to serve an officer, director, managing or general agent, cashier, assistant cashier, or a person authorized to accept service on behalf of CGI. CGI contends that because plaintiff served them through the "nail and mail" procedure rather than pursuant to CPLR 311, this court does not have personal jurisdiction over CGI.
In opposition, plaintiff argues that because CGI is not a corporation, he did not need to comply with the method of service enumerated in CPLR 311. According to plaintiff, "Camp Gan Israel" is the name typically given to any camp organized under the auspices of Chabad-Lubavitch and there are multiple "Camp Gan Israels" across the country and in the same state. Thus, plaintiff argued that the Camp Gan Israel incorporated in Pennsylvania has no connection to CGI. In addition, plaintiff underscored that the address for the Pennsylvania camp listed by the Pennsylvania Secretary of State is different from the CGFs New York address. Plaintiff also contends that even if plaintiff was required to serve defendant pursuant to CPLR 311, service was proper under CPLR 311 (b) as alternative service. In any event, plaintiff served CGI again on July 20,2020, pursuant to CPLR 311 (a). Plaintiff does not attach an affidavit of service evidencing as much to this motion but attaches it to plaintiffs subsequent motion to amend the complaint
CGI did not reply in substance to plaintiffs opposition. Instead, CGI asks the Court to disregard plaintiffs opposition since they did not serve opposition at least seven days prior to the return date.[1]
On September 11, 2020, CGI filed a third-party summons and complaint against Posner and Sandman.
Plaintiff then separately moved on November 12, 2021, to amend the complaint pursuant to CPLR 3025 (b) to include CGI Inc. as a defendant. Plaintiff argues that CGI Inc. has been doing business in New York as an unauthorized corporation since it is not registered with the New York Secretary of State as a foreign corporation in accordance with Business Corporation Law (BCL) §§ 1301 (a), 1304, and 304. Plaintiffs position in this motion is that CGI and CGI Inc. are the same entity. Plaintiff submits CGI Inc.'s IRS Form 990 for 2016 and 2020 to demonstrate that CGI is doing business as a foreign corporation in New York under the name CGI Inc. CGI Inc.'s address listed on the IRS Form 990 is 580 Crown Street, Suite 509, Brooklyn, New York 11213 (the Crown St address).
To add to the confusion of CGI and CGI Inc.'s identity as presented, plaintiff asserts that they received a copy of CGI's insurance policy from Markell Insurance Company. The policy identified the insured as CGI and listed CGI's address as the Eastern Pkwy address. This insurance policy was not attached to either motion.
As a result, plaintiff argues that since CGI concealed its status by failing to register to do business in New York as a foreign corporation, plaintiff should now be granted leave to add CGI Inc. under the relation back doctrine now that the CVA's revival window has closed.
In CGI's opposition, CGI admits to operating as a corporation under CGI Inc. CGI also submitted an affidavit by Rabbi Joseph Futerfas (Rabbi Futerfas), the Assistant Director for CGI at the Parksville Rd address. Rabbi Futerfas stated that the Crown St address belonged to Marc L. Minkoff, the organization's accountant. CGI also contends that the subsequent personal service plaintiff effectuated on July 20, 2020, by delivery to Rabbi Halberstam was also improper because Rabbi Halberstam, according to Rabbi Futerfas' affidavit, has no connection to CGI Inc. and was not authorized to accept service. Rabbit Futerfas highlights that Rabbi Halberstam's office is merely in the same building as CGI's office. According to defendant, even if CGI was an unauthorized foreign corporation, CPLR 311 would still apply and service of process would have to be completed pursuant BCL § 307, which codifies service of process on unauthorized foreign corporations. Defendant argued that plaintiff failed to serve CGI in accordance with this section.
The first issue the Court must resolve is whether there is personal jurisdiction over defendant CGI. If CGI was properly served, then the Court will entertain plaintiffs subsequent motion. If CGI was served improperly, then the action must be dismissed as the Court would lack personal jurisdiction over CGI.
A foreign corporation is prohibited from doing business in New York State until it has been authorized to do so (BCL § 1301 [a]; Aybar v Aybar, 37 N.Y.3d 274, 283 [2021]).[2] A foreign corporation may apply to do business in New York State by submitting an application of authority to the Department of State (BCL § 1304). The application must designate the Secretary of State as an agent upon whom process against it may be served and the address for process to be mailed (BCL § 1304 [6]). This requirement is codified in BCL § 304 (a). The failure to designate the Secretary of State as an agent proscribes those corporations from conducting business in New York State (BCL § 304 [b]).
Here plaintiff claims that CGI is not authorized to do business in New York. CGI concedes that it has a camp located at the Parksville Rd address and an office located at the Eastern Pkwy address. In rebuttal, CGI merely disagrees and offers no evidence to dispute this claim, such as an application of authority. This leaves the Court with only one conclusion-that CGI is in fact an unauthorized foreign corporation doing business in New York.[3] The Court must consider CGI's corporate status to conduct business here in New York to determine what type of service would be proper (CPLR 311; BCL §§ 306; 307). However, the Court is without power to penalize CGI in this matter for doing business in violation of the enumerated statutes as such authority is reserved for actions brought by the New York State Attorney General (BCL § 1303). Nevertheless, depending on the analysis involving service below, the Court may very well draw a negative inference from CGI's failure to apply for authority to conduct business in New York and register with the Secretary of State as an agent.
CPLR 311 (a) (1) permits personal service upon any domestic or foreign corporation by delivering the summons to an officer director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. Upon motion, without notice, CPLR 311 (b) allows for alternative service on any domestic or foreign corporation if service is impracticable under CPLR 311 (a) within 120 days. CPLR 311 also permits an unauthorized foreign corporation to be served pursuant to BCL § 307 (Hessel v Goldman, Sachs & Co., 281 A.D.2d 247, 247-248 [1st Dept 2001]). To serve an unauthorized foreign corporation under...
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