Martinez v. Goolcharran
| Decision Date | 20 July 2021 |
| Docket Number | Index 20983/2012E |
| Parties | ADAM MARTINEZ, Plaintiff, v. VISHNUDAT GOOLCHARRAN and NINA SINGH, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION AND ORDER
The issue in Defendant's motion is whether the default judgment against her should be vacated upon a jurisdictional defect or a reasonable excuse for not appearing in time to defend. This court holds service of process was appropriate and Defendant Nina Singh's ("Defendant") excuse insufficient.
This case arises from a personal injury action sounding in negligence, which was commenced by Plaintiff for injuries he sustained from a trip and fall accident on the sidewalk abutting Defendant's property. Plaintiff obtained a default judgment in the amount of two hundred thirty-five thousand dollars ($235, 000.00) on December 5, 2013, and Defendant now seeks to vacate same, CPLR §317 allows a defendant against whom a default judgment has been rendered to move to vacate a default and is available only to a defendant who: (1) was served by a method other than personal delivery; (2) moves to vacate the judgment within one year of learning of it (but not more than five years after entry) and (3) demonstrates a potentially meritorious defense to the action. Caba v. Rai, 63 A.D.3d 578, 882 N.Y.S.2d 56 (1st Dep't 2009). In addition, pursuant to CPLR §5015(a)(4), a default must be vacated once a movant demonstrates lack of jurisdiction.
Defendant claims that her default in this action was unintentional as she never received the summons and complaint. She argues because Plaintiff effectuated service of the summons and complaint via CPLR §308(4) by affixing the summons and complaint upon the front door of her home[1] and not on the door to her specific unit, 2F, that service was improper. Moreover, she contends that service was defective because there was no showing of due diligence prior to Plaintiff resorting to service under CPLR §308(4). In addition she argues that the subsequent mailing of the summons and complaint did not include her unit, 2F, therefore, rendering the mailing defective. Thus, she posits that this court lacked jurisdiction over her at the time it rendered its default judgment, thereby, requiring a vacatur of same. Lastly, she contends that she possesses a meritorious defense to the underlying action as she claims that she did not have notice of the defective sidewalk.
In opposition, Plaintiff contends that service of the summons and complaint was proper. Plaintiff relies upon the affidavit of service of his licensed process server, Joe Matos, who averred that he attempted to personally serve the Defendant at her home located at 1322 Croes Avenue Bronx, New York 10472, three times: (1) Thursday, May 31, 2012, at 12:42 p.m.; (2) Monday, June 4, 2012, at 10:43 a.m.; and (3) Tuesday, June 5, 2012, at 8:28 p.m. After those unsuccessful attempts, Mr. Matos averred that on Wednesday, June 20, 2012, at 2:46 p.m., he affixed the summons and complaint to the front door of the subject property after he was unable to gain access or locate Defendant. In addition, Mr. Matos took a photograph depicting the summons and complaint affixed to the front door of Defendant's home and annexed same to his affidavit of service.
Thereafter, on June 21, 2012, Mr. Matos averred that he mailed via first class mail delivery a copy of the summons and complaint to Defendant's home address. Further, he annexed to his affidavit of service a copy of the USPS certificate of mailing receipt dated June 21, 2012, evincing that the mailing requisite under CPLR §308(4) was completed on said day. Therefore, Plaintiff argues that service was properly completed in accordance with CPLR §308(4), and Defendant's affidavit containing bald denials claiming otherwise provides an insufficient basis to contest service. Lastly, Plaintiff contends that Defendant failed to present a meritorious defense to the underlying action as his complaint clearly provides how Plaintiff sustained his injuries.
This court finds that Defendant's reliance upon CPLR §317 is misplaced. Defendant claims that she was not personally served. However, CPLR §308 provides that personal service upon a natural person may be made under CPLR §308(4). CPLR §308 begins with: "[personal service upon a natural person shall be made by any of the following methods...", thus, "nail and mail" service pursuant to CPLR §308(4) constitutes a methodology of personal service.
Therefore, since service of a summons and complaint under CPLR §308(4) is a method of personal service it precludes Defendant from availing herself of the relief contained in CPLR §317 since the statute explicitly proscribes that it is only applicable to a person that was served by a method other than personal deliver)'. See Rothopf v. Rothopf, 191 A.D.2d 685, 595 N.Y.S.2d 506 (2d Dep't 1993); cf, Seijas v. Rawhide Ranch, Inc., 99 A.D.2d 739, 472 N.Y.S.2d 385(1st Dep't 1984).
In addition, this court finds that Plaintiffs licensed process server, Mr. Matos', affidavit of service constituted prima facie evidence of proper service, as it indicated the efforts to serve Defendant at her residence on three different occasions (early morning, afternoon and evening) prior to resorting to "nail and mail" delivery under CPLR §308(4). See Ayala v. Bassett, 57 A.D.3d 387, 870 N.Y.S.2d 261 (1st Dep't 2008). Consequently, the burden then shifted to Defendant to rebut the presumption of proper service, which she failed to do.
It is undisputed that service was at Defendant's actual residence. Similarly, it is undisputed that the summons and complaint was affixed to the front door of Defendant's home and with a subsequent mailing to the same address. Accordingly, this court is not persuaded by Defendant's argument that service of the summons and complaint was defective because Mr. Matos did not affix them to the door of her particular unit, 2F, but rather to the front door of her home. It is not refuted that...
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