Hernandez v. Mueller

• Decision Date: 16 August 2010
• Citation: 907 N.Y.S.2d 583,29 Misc.3d 522
• Parties: Raymond HERNANDEZ, Jr., Plaintiff, v. Benjamin H. MUELLER, Maria L. Mueller, Hans V. Mueller, Auguste Mueller, Euromilka II Inc., and Henry's Deli and Grocery, Defendants.
• Court: New York Supreme Court

907 N.Y.S.2d 583

29 Misc.3d 522

Raymond HERNANDEZ, Jr., Plaintiff,

v.Benjamin H. MUELLER, Maria L. Mueller, Hans V. Mueller, Auguste Mueller, Euromilka II Inc., and Henry's Deli and Grocery, Defendants.

Supreme Court, Kings County, New York.

Aug. 16, 2010.

Erin K. Hurley, Esq. of Lipsig, Shapey, Manus & Moverman, P.C., for plaintiff.

JACK M. BATTAGLIA, J.

By Order to Show Cause, Plaintiff moves for an order, in effect, enforcing an order entered in the Central Compliance Part on May 17, 2010 that granted Plaintiff's prior motion to compel compliance with a non-party subpoena, and ordered the non-party, Luis Hernandez, to appear for deposition on June 29, 2010. Specifically, Plaintiff seeks an order, "pursuant to CPLR § 3124 and Judiciary Law §§ 753(A)(5) and 756 ... to compel non-party Luis Hernandez to comply with" the May 17, 2010 order "and to appear for a deposition on a date and time chosen by this Court"; and, "pursuant to CPLR § 2308, for costs and penalties against non-party Luis Hernandez for his failure to comply with the plaintiff's subpoena" and the May 17, 2010 order. (Order to Show Cause dated July 21, 2010.) For reasons that follow, this Court declines at this time to enforce the May 17, 2010 order or the subpoena upon which it is based.

First, the method of service provided for in the Order to Show Cause was not strictly complied with, and, since Luis Hernandez is a non-party who has not appeared in this action, anydefect is jurisdictional in nature ( see Matter of Bruno v. Ackerson, 39 N.Y.2d 718, 384 N.Y.S.2d 765, 349 N.E.2d 865, aff'g 51 A.D.2d 1051, 381 N.Y.S.2d 522 [2d Dept.1976]; Matter of Stern v. Garfinkle, 22 A.D.3d 694, 694-95, 805 N.Y.S.2d 395 [2d Dept.2005]; Kue Mee Realty Corp. v. Louie, 295 A.D.2d 263, 263-64, 743 N.Y.S.2d 863 [1st Dept.2002]; Turkish v. Turkish, 126 A.D.2d 436, 439, 510 N.Y.S.2d 582 [1st Dept.1987] ) The Order to Show Cause signed by Hon. Gloria M. Dabiri on July 21, 2010 required"personal service" upon non-party Luis Hernandez on or before July 28, 2010. This Court understands "personal service" to mean such service as would be effective under CPLR 308, "Personal service upon a natural person."

Plaintiff submits an Affidavit of Service on the familiar form. The Affidavit is undated, as is the notary's jurat, but the defect may be disregarded ( see CPLR 2001; Harlem Metal Corp. v. Segal, 167 Misc. 321, 322-23, 3 N.Y.S.2d 969 (Bronx Municipal Court 1938.) The Affidavit recites four attempts to deliver the Order to Show Cause to Mr. Hernandez or a person of suitable age and discretion at his residence ( see CPLR 308[1], [2].) On three attempts, no one responded to the bell or "banging" on the door. On the fourth attempt, Mr. Hernandez "stood in vestibule behind closed glass panel dr & refused service" (Affidavit of Service of Jamal M. Asad.) On the form, the boxes designated "affixing to door, etc." and "mailing to residence" are checked.

Tested against the requirements for effective service pursuant to CPLR 308(1), the Affidavit is insufficient. "[U]nder CPLR 308 (subd 1), delivery of a summons may be accomplished by leaving it in the general vicinity' of a person to be served who resists' service." ( Bossuk v. Steinberg, 58 N.Y.2d 916, 918, 460 N.Y.S.2d 509, 447 N.E.2d 56 [1983] [ quoting McDonald v. Ames Supply Co., 22 N.Y.2d 111, 115, 291 N.Y.S.2d 328, 238 N.E.2d 726 (1968) ] ) "Thus, under that provision, if the person to be served interposes a door between himself and the process server, the latter may leave the summons outside the door, provided the person to be served is made aware that he is doing so." ( Id.; see also Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 344, 756 N.Y.S.2d 92 [2d Dept.2003] ).

For service to be effective, the person to whom delivery is purportedly made must be "made aware of the fact and manner of service" ( see Selby v. Jewish Mem. Hosp., 130 A.D.2d 651, 652, 515 N.Y.S.2d 580 [2d Dept.1987] ); that is, that process or other legal papers are being delivered ( see Kapsis v. Green, 285 A.D.2d 492, 493, 727 N.Y.S.2d 895 [2d Dept.2001]; Roman v. Guzzardo, 198 A.D.2d 489, 489, 604 N.Y.S.2d 183 [2d Dept.1993]; Coyne v. Besser, 154 A.D.2d 503, 503-04, 546 N.Y.S.2d 129 [2d Dept.1989] ), and that the process or other legal papers will be left outsidethe door ( see Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d at 344, 756 N.Y.S.2d 92; MacGregor v. Piontkowski, 133 A.D.2d 263, 263, 518 N.Y.S.2d 820 [2d Dept. 1987]; Spector v. Berman, 119 A.D.2d 565, 566, 500 N.Y.S.2d 735 [2d Dept.1986] ).

The Affidavit of Service provides no basis for finding compliance with these requirements, and, therefore, does not support service pursuant to CPLR 308(1). The Affidavit may still support effective service pursuant to the "nail and mail" provisions of CPLR 308(4). The Court will assume that Plaintiff does not have a business address for Luis Hernandez, and that the attempts at personal delivery constitute "due diligence" ( see CPLR 308[4]; JPMorgan Chase Bank, N.A. v. Szajna, 72 A.D.3d 902, 903, 898 N.Y.S.2d 524 [2d Dept.2010]; Federal Natl. Mtge. Assn. v. Rogers Realty & Mgt. Corp., 27 Misc.3d 1236[A], 2010 N.Y. Slip Op. 51072[U], *2-*3, 2010 WL 2471458 [Sup. Ct., Kings County 2010].)

CPLR 308(4) further requires, however, that proof of service in accordance with its provisions, including a follow-up mailing, be filed with the clerk of the court within 20 days of affixation or mailing, whichever is later; and provides that "service shall be complete ten days after such filing" ( seeCPLR 308[4].) Here, the Affidavit of Service does not state when the mailing was made other than that it was within 20 days of affixation, as the statute requires. In determining compliance with the filing requirement, therefore, the Court must use the date of affixation, i.e., July 28, 2010.

The Affidavit of Service was filed with the clerk of the court on August 9, 2010, which was within 20 days of affixation. But because service was not complete on that date, it did not comply with the Order to Show Cause, which required "personal service" no later than July 28, 2010. Moreover, since the return date for the motion was also August 9, service was not complete on the return date.

The Court has no reason to understand "personal service" as used in the Order to Show Cause to mean anything other than service effective pursuant to CPLR 308, particularly where service is being made on a non-party who has not previously appeared in the action, and where the motion seeks "costs and penalties" pursuant to CPLR 2308 and contains the notice required by Judiciary Law § 756 that "this hearing is to punish ... Luis Hernandez for contempt of court" (Order to Show Cause dated July 28, 2010.) ( See John Sexton & Co., Div. of Beatrice Foods, Inc. v. Law Foods, Inc., 108 A.D.2d 785, 786, 485 N.Y.S.2d 115 [2d Dept.1985] ["(N)otice of a contempt proceeding against a nonparty to the underlying action must be effected by personal service"]; Hampton v. Annal Mgt. Co., 168 Misc.2d 138, 139, 646 N.Y.S.2d 227 [App. Term., 1st Dept.1996] ).

It appears that the common practice, of this Court and others, of directing service of an order to show cause by "personal service" is problematic, particularly where service is required for personal jurisdiction, or where there are clear statutory notice requirements, such as for a motion to punish for contempt ( see Judiciary Law § 756 ["no less than ten and no more than thirty days before the time at which the application is noticed to be heard"].) The potential for difficulties is not limited to service of an order to show cause on a non-party. ( See for example CPLR 403[d] [special proceeding]; CPLR 6313[b] [temporary restraining order].) An appropriate alternative might expressly state that service pursuant to CPLR 308(2) or 308(4) shall be deemed complete upon the later of delivery, affixation, or mailing, and provide for filing proof of service on the return date.

There are reasons in addition to the lack of effective service as required by the Order to Show Cause for denying the relief requested, either as enforcement of the May 17, 2010 Central Compliance Part order or the Deposition Subpoena dated February 12, 2010. The May 17 order was made on Plaintiff's motion to compel, which was made by Notice of Motion. There is no proof of service of that motion among the papers submitted now, and, therefore, the motion may or may not have been served in the manner required for a summons. Unlike the pending Order to Show Cause, which is ambiguous as to contempt, the Notice of Motion refers only to CPLR 3124 and 2308(b), both of which relate only to compelling compliance, and not to punishment for contempt ( see CPLR 2308 [a].)

In any event, the May 17 order directs Plaintiff "to serve a copy of this order upon the defaulting Non-Party, Luis Hernandez, by 5/24/10"; the order does not, however, direct a method of service. According to an Affidavit of Service, a copy of the May 17 order was sent by first class mail to Mr. Hernandez on June 4, 2010. "Where the rights of a party are or may be affected by [an] order, the successful moving party, in order to give validityto the order, is required to serve it on the adverse party." ( Fried v. Carlucci & Legum, 309 A.D.2d 829, 830, 766 N.Y.S.2d 83 [2d Dept.2003] [ quoting McCormick v. Mars Assoc., 25 A.D.2d 433, 433, 265 N.Y.S.2d 1004 (2d Dept.1966) ] ). "[I]t is axiomatic that before an order may be enforced, notice of such order must be given to the party against whom it is sought to be enforced." ( Lori v. Malstrom, 13 A.D.3d 243, 245, 787 N.Y.S.2d 19 [1st Dept.2004] [ quoting Matter of Raes Pharm, Inc. v. Perales, 181 A.D.2d 58, 62, 586 N.Y.S.2d 579 (1st Dept.1992) ] ).

As to service of an order, the CPLR states only, "Service of an order shall be made by serving a copy of the order" (CPLR 2220[b].) The issue here, of course, is manner of service, and there is nothing further in the CPLR as to service of an...