Etienne v. Rowe

Decision Date12 December 2017
Docket NumberINDEX NO. 604123/2017
Citation2017 NY Slip Op 33175 (U)
PartiesANTHONY ETIENNE, Plaintiff, v. ORLANDO ROWE, Defendant.
CourtNew York Supreme Court

2017 NY Slip Op 33175(U)

ANTHONY ETIENNE, Plaintiff,
v.
ORLANDO ROWE, Defendant.

INDEX NO. 604123/2017

SUPREME COURT OF THE STATE OF NEW YORK NASSAU COUNTY TRIAL/IAS PART 35

RECEIVED: December 19, 2017
December 12, 2017


NYSCEF DOC. NO. 19

SHORT FORM ORDER

PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice

Motion Seq. Nos.: 01, 02
Motion Dates: 09/28/17 10/26/17

The following papers have been read on these motions:

Papers Numbered
Notice of Motion (Seq. No. 01), Affirmation and Exhibits
1
Notice of Cross-Motion (Seq. No. 02), Affirmation and Exhibits
2
Affirmation in Opposition to Cross-Motion (Seq. No. 02) and in Reply to
Motion (Seq. No. 01)
3

Upon the foregoing papers, it is ordered that the motions are decided as follows:

Defendant moves (Seq. No. 01), pursuant to CPLR § 3211(a)(5) and (8), for an order dismissing the Verified Complaint based upon lack of personal jurisdiction and expiration of the Statute of Limitations; or moves, in the alternative, pursuant to CPLR §3212, for a order granting summary judgment dismissing plaintiff's Verified Complaint.

Plaintiff opposes the motion and cross-moves (Seq. No. 02), pursuant to CPLR § 306-b, for an order extending the time to serve defendant. Defendant opposes the cross-motion.

This action arises from a motor vehicle accident which occurred on June 18, 2014, at approximately 10:30 p.m., on 109th Avenue, at or near its intersection with Heathcote Road,

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Elmont, County of Nassau, State of New York. The accident involved two (2) vehicles, a 2003 Audi, operated by plaintiff, and a 2011 Infiniti, owned and operated by defendant. See Defendant's Affirmation in Support Exhibit C. Plaintiff commenced this action with the filing of a Summons and Verified Complaint on or about May 2, 2017. See Defendant's Affirmation in Support Exhibit A. Defendant appeared in this action by service of a Verified Answer with Affirmative Defenses dated July 7, 2017. See Defendant's Affirmation in Support Exhibit B. One of the Affirmative Defenses set forth in defendant's Verified Answer asserts lack of personal jurisdiction. See id.

In support of the motion (Seq. No. 01), defendant submits, in pertinent part, that, "I have been notified by the LAW OFFICES OF DENIS J. KENNEDY, staff counsel attorneys for USAA Insurance Company, with whom I had an automobile insurance policy on June 18th, 2014, that someone on behalf of the Plaintiff in this action claims to have served a copy of the Summons and Complaint for this lawsuit on me by delivering a copy of same to a Ms. Cain, at my home address of 62 Fieldmere Street, Elmont New York, on May 30th, 2017. That they further claim that they determined that I was not in the military service at the time of the purported service. I have reviewed a copy of the Plaintiff's Affidavit of Service, which is attached hereto which makes those claims. The Affidavit of Service is untrue. At no time did the Plaintiff or anyone on Plaintiff's behalf serve a copy on a person known as or calling herself 'Ms. Cain' at that address. More importantly, the statement that claims this Ms. Cain was asked if I was in active military service, and that there was a negative reply to that, is false. In fact, I am an active member of the United States Army. I was away on active duty service, pursuant to my Orders from the Office of the Adjutant General requiring me to appear for the period of June 1st, 2017 through June 23rd, 2017 for active duty training, the same time that the mailing upon me would have been completed. Therefore, the statement that is attributed to Ms. Cain that I was not

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in the military is untrue. Thus, the Affidavit is faulty and without any legal basis. It is my understanding that there was no proper service upon me in this lawsuit. Significantly, I was not at fault for the accident that is the subject of this case against me. As I advised the responding Nassau County Police Officers, the other driver, the plaintiff Etienne, went through a stop sign at the intersection of 109th Avenue and Heathcote Road in Elmont, hitting my car and causing it to strike a sign post there. I did not have a stop sign as I traveled on 109th Avenue, but the plaintiff, traveling on Heathcote Road did." See Defendant's Affirmation in Support Exhibit C.

Counsel for defendant argues, in pertinent part, that, "[t]he Defendant was not served in accordance with the mandates of CPLR § 308(2). As such, the defective service constitutes a failure to obtain personal jurisdiction over Defendant, ORLANDO ROWE, and the Summons and Complaint against him should be dismissed. Furthermore, since the statute of limitations for Plaintiff's claim has expired, this dismissal should be with prejudice."

Counsel for defendant further contends that, "[T]he Plaintiff does not possess a meritorious cause of action herein. The Defendant was not at fault for this accident. Plaintiff was driving, unlicensed, when he drove through a stop sign and struck Defendant.... The unlicensed Plaintiff was traveling southbound on Heathcote Road, Elmont, New York and went through a stop sign at the intersection of 109th Avenue and Heathcote-Drive (sic), striking Defendant's vehicle, which did not have a stop sign controlling his direction. This is further confirmed by the annexed Police Accident Report, ..., which cites the Plaintiff for both a failure to yield the right-of-way and disregarding a traffic control device.... Pursuant to Vehicle and Traffic Law § 1142(a), a driver traveling on a road controlled by a stop sign who fails to yield the right of way is in violation of said statute and is negligent as a matter of law. [citations omitted].... Defendant, ORLANDO ROWE was not at fault for the happening of the accident and Plaintiff's cause of action against him must fail." See Defendant's Affirmation in Support Exhibits C and D.

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In opposition to the motion (Seq, No. 01) and in support of the cross-motion (Seq. No. 02), counsel for plaintiff argues, in pertinent part, that "[m]ovant erroneously claims that the plaintiff's Complaint should be dismissed due to a lack of personal jurisdiction, the expiration of the Statute of Limitations, and that no meritorious cause of action exists against the defendant.... Movant's argument fails on all three grounds and thus it is respectfully submitted that the Court must deny this motion. In the alternative, if the Court finds that service was not properly performed in this case, it is respectfully requested that the Court grant leave for the plaintiff to serve the Summons and Complaint beyond the statutory timeline. The movant incorrectly asserts that the Court lacks personal jurisdiction over the defendant because he was not properly served with a copy of the Summons and Complaint. Specifically, defendant asserts in his affidavit ... that he was away on active military service at the time when the Summons and Complaint were served, and he contests the assertions in the Affidavit of Service.... The plaintiff has no knowledge of whether or not the defendant was in fact away on active duty service from June 1, 2017 through June 23, 2017. However, the plaintiff will respect the Court's in camera inspection of the defendant's Orders from the Office of the Adjutant General. At no point does the defendant claim that he was away on active duty service on May 30, 2017, the day the process server served the Summons and Complaint. The defendant's affidavit states that he was away on active duty service from June 1 through June 23 of 2017. The process server's sworn affidavit of service states that service of the Summons and Complaint was performed on May 30, 2017, two days before the defendant left for his active duty service. A plaintiff is not required to have actual knowledge of whether or not a defendant is on active military service at the time of service of process. Instead, the plaintiff must establish and demonstrate facts showing that a defendant is or is not in active miliary service. In this case, the process server has sufficiently demonstrated that he performed (sic) adequate investigation into the defendant's military status. Specifically, the Affidavit of Service states that the process server spoke with Ms. Cain, a suitable person located at the defendant's residence address on May 30,

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2017, and was told by Ms. Cain that the defendant was not in active military service. Again, by his own admissions, the defendant was not on active duty service on the day that the process server spoke with Ms. Cain. Additionally, the defendant's affidavit does not sufficiently dispute the process server's allegations.... Defendant asserts that nobody on plaintiff's behalf served a copy on Ms. Cain. However, defendant does not set forth any corroborating facts in support of this statement. Specifically, defendant fails to say who Ms. Cain is or whether or not he even asked Ms. Cain of she received the complaint, nor does defendant dispute that Ms. Cain was there on the day of service. Given that nobody has asserted that defendant was present when Ms. Cain received the Summons and Complaint, and Ms. Cain has not offered any statement as to whether or not she received the Summons and Complaint, it is inappropriate for the defendant to assert that Ms. Cain did not receive the Summons and Complaint. Likewise, the defendant claims that the process server did not ask Ms. Cain if the defendant was on active military service, and that Ms. Cain did not reply in the negative to that question. The language of defendant's affidavit is clear - the assertion is not that he was on active military service, he is claiming that the question was never even asked.... [N]obody, including the defendant, has asserted that the defendant was present when Ms. Cain was asked about defendant's military service, nor has Ms. Cain offered any statement in contradiction of the...

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