Kaszovitz v. Weiszman

• Decision Date: 03 September 1985
• Citation: 110 A.D.2d 117,493 N.Y.S.2d 335
• Parties: Zelma KASZOVITZ, et al., Respondents, v. Martin WEISZMAN, Appellant, et al., Defendant (and another title).
• Court: New York Supreme Court — Appellate Division

Page 335

493 N.Y.S.2d 335

110 A.D.2d 117

Zelma KASZOVITZ, et al., Respondents, v. Martin WEISZMAN, Appellant, et al., Defendant (and another title).

Supreme Court, Appellate Division Second Department.

Sept. 3, 1985.

William A. Scorzari, P.C., Huntington, for appellant.

Feder, Kaszovitz, Isaacson, Weber & Skala, New York City (Alvin M. Feder and Richard J. Gottlieb, New York City, of counsel), for respondents.

Before THOMPSON, J.P., and BROWN, NIEHOFF and LAWRENCE, JJ.

PER CURIAM.

This is an action to recover for personal injuries allegedly sustained by plaintiff Zelma Kaszovitz, on July 28, 1978. Mrs. Kaszovitz alleges that she was injured during a fall on the public sidewalk abutting the defendants Weiszmans' residence at 1416 56th Street, Brooklyn, New York. On September 7, 1978, plaintiff Zelma Kaszovitz and her husband, William Kaszovitz, filed a claim against the City of New York in connection with the alleged defective condition of the public sidewalk and her claimed injuries.

Thereafter, in January of 1980, plaintiffs instituted an action against the City of New York. The City of New York served its answer in or about October of 1981. In February of 1981, two and a half years after the incident and more than one year after commencement of the action against the City of New York, the plaintiffs instituted a similar action against defendants Martin and Esther Weiszman. In their verified answer these defendants asserted the following second affirmative defense:

"Lack of Jurisdiction in that the defendants were not served in conformity with the rules and regulations of the CPLR".

Plaintiffs never moved to strike this defense. On May 14, 1982, plaintiffs' actions against the defendants Weiszman and the City of New York were consolidated. In May 1983, the City of New York moved for summary judgment dismissing the plaintiffs' complaint against it upon the ground that plaintiffs had failed to commence their action within the applicable Statute of Limitations period of one year and 90 days (General Municipal Law § 50-i). On November 29, 1983, the motion was granted and the action as against the Weiszmans was assigned to a trial part.

Prior to the commencement of the trial, plaintiffs conceded that the named defendant Esther Weiszman was not served and that no action was maintainable as against her and a traverse hearing was conducted to determine the issue of service on defendant Martin Weiszman. The only evidence offered by the plaintiffs to support their claim of valid in personam jurisdiction over defendant Martin Weiszman was the affidavit of the process server. The process server was not called to testify despite defendant Martin Weiszman's demand for his production, and no excuse was offered for plaintiffs' failure to produce him for cross-examination. The affidavit in question was an affidavit of substituted service of summons. It stated that the process server had appeared at the Weiszmans' home on Wednesday, February 18, 1981, at 3:20 P.M., Friday, February 20, 1981, at 8:45 A.M., and Thursday, February 26, 1981, at 6 P.M. and rang the doorbell but received no answer. The process server then made inquiry of a neighbor concerning defendant Martin Weiszman. However, the neighbor was unable to furnish the process server with any information as to the availability of said defendant. The affidavit goes on to assert that the process server nailed a copy of the summons and complaint on the door and mailed a copy to defendant Martin Weiszman.

In addition to objecting to the admission of the affidavit of substituted service, Martin Weiszman's attorney argued that the affidavit was patently defective because it failed to demonstrate that the process server had exercised due diligence in attempting to serve said defendant personally before resorting to substituted service.

Defendant Martin Weiszman, on his part, testified that no summons was affixed to the door of his residence. He claimed to have found the summons in his hallway. There was a mail slot in the door through which the document could have been deposited in the hallway. After considerable questioning of said defendant, the court ruled that proper service had been made upon him. The court did not address his claim that due diligence had not been shown.

In Anton v. Amato, 101 A.D.2d 819, 820-21, 475 N.Y.S.2d 298, this court wrote:

"Where a process server dies prior to such a [traverse] hearing, his affidavit of service, if not conclusory and devoid of sufficient detail, shall be received as prima facie evidence of service (Smid v. Lombard, 83 A.D.2d 877 ). However, where the process server is living and available to testify, defendant's sworn denial of service renders the affidavit of service nonconclusive and shifts the burden of proof to plaintiff to substantiate the allegation of personal service therein (De Zego v. Donald F. Bruhn, P.C., 99 A.D.2d 823 ; Old Colony Furniture Co. v. Fiegoli, 97 A.D.2d 790 ; Empire Nat. Bank v. Judal Constr., 61 A.D.2d 789 ). Under such circumstances, the affiant must be made available for cross-examination by the party denying receipt (Empire Nat. Bank v. Judal Constr., supra ).

"Because the process server was available to testify in this case, Special Term erred when it admitted the affidavit as prima facie evidence of service in the face of defendant's sworn denial of receipt. That denial shifted the burden of proof to plaintiff, who should then have been required to call the process server to testify. The failure to have done so deprived defendant of the opportunity to cross-examine the process server regarding the allegations contained in the affidavit of service. Therefore a new traverse hearing must be conducted."

Here, appellant denied being served "in conformity with the rules and regulations of the CPLR". That being so, the affidavit of the process server was not admissible into evidence to prove that service had been made in conformity with the CPLR unless the affiant was made available for cross-examination or was dead or otherwise unavailable (Anton v. Amato, supra; De Zego v. Donald F. Bruhn, P.C., 99 A.D.2d 823, 472 N.Y.S.2d 414; Smid v. Lombard, 83 A.D.2d 877, 442 N.Y.S.2d 104). At bar, there being no allegation of the unavailability of the process server, his affidavit was erroneously admitted into evidence.

While generally a new hearing on the issue of jurisdiction would be warranted so that plaintiffs could be given an opportunity to produce the process server, here the affidavit of substituted service, on its face, demonstrates a lack of due diligence by the process server and oral evidence cannot alter that fact. "Nail and mail" service is not sustainable unless there is proof that the process server first attempted with "due diligence" to cause service to be made in accordance with the provisions of CPLR 308(1), (2). Because there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308(4), the requirement of "due diligence" is to be stringently observed (McLaughlin, 1981...