Materials Testing Lab, Inc. v. Agosto, 2007 NY Slip Op 32477(U) (N.Y. Sup. Ct. 8/3/2007)

• Decision Date: 03 August 2007
• Docket Number: 0007331/2007.,Mot Seq: 001 MotD.
• Citation: 2007 NY Slip Op 32477
• Parties: MATERIALS TESTING LAB, INC., Plaintiff, v. ALBERT AGOSTO and FERNANDO GONZALES, Defendants.
• Court: New York Supreme Court

Page 1

2007 NY Slip Op 32477(U)

MATERIALS TESTING LAB, INC., Plaintiff, v. ALBERT AGOSTO and FERNANDO GONZALES, Defendants.

0007331/2007.

Mot Seq: 001 MotD.

Supreme Court of the State of New York, Suffolk County.

August 3, 2007.

Adj'd Date: July 26, 2007.

Return Date: May 29, 2007.

PECKAR & ABRAMSON, P.C. New York, New York, Attorney for the Plaintiff.

SANDRA L. SGROI, J.

Upon the following papers numbered 1 to 10 read on this Motion: Notice of Motion and supporting papers 1-10; it is,

ORDERED that the motion by the Plaintiff for an order pursuant to CPLR 308(5) to direct the manner of service of the summons and complaint and for other relief is granted; and it is further

ORDERED that the Plaintiff is granted an additional 120 days to properly serve all Defendants; and it is further

ORDERED that the summons in the above entitled action be served upon Fernando Gonzales, the Defendant herein, by publication to wit: that the summons together with the notice to the Defendant Fernando Gonzales, containing a brief statement of the nature of the action and the relief sought, and the sum of money for which judgment may be taken in a case of a default in answering, be published in two newspapers, at least one in the English language viz: in the New York Daily News published in the City of New York, Borough of Brooklyn, State of New York and in Newsday, published in the entire County of Suffolk, State of New York both most likely to give notice to the Defendant Fernando Gonzales, once in each of four successive weeks, and it is further

ORDERED, that the summons, complaint, order, and papers on which this order is based shall be filed on or before the first day of publication and that the first publication shall be made within thirty days after this order is granted; and it is further

ORDERED that the Plaintiff is also directed to serve a copy of the summons and complaint by regular mail on Hilma Gonzalez, 1035 45^th St. Apt. 4A, Brooklyn, New York 11219-1941 and Jesus M. DeGonzalez 1035 45^th St. Apt. 2F, Brooklyn, New York 11219-1940, possible relatives of the Defendant Gonzales and to serve a copy of the summons and complaint together with this order on Fernando Gonzales by regular mail at 145 Franklin Avenue, Apt. 19, Brooklyn, New York 11222 within twenty days of the commencement of publication in the newspapers and prior to the completion of publication of the notice in the two Newspapers; and it is further

ORDERED that proof of publication and service by mail shall be properly and duly filed with the Clerk of the Court by the Plaintiff thirty days after service is complete; and it is further

ORDERED that any motion for a default judgment against the Defendant Fernando Gonzales shall include a copy of this order, proof of service pursuant to this order and all other required attachments.

The attorney for the Plaintiff has submitted an affirmation and an affidavit from the process server Anthony McCreath alleging that the Plaintiff has been unable to serve the Defendant Fernando Gonzales despite due diligent attempts to serve pursuant to CPLR 308 (1),(2) and (4). The process server alleges that he made two attempts at the address that he had for this Defendant, five attempts at a barbershop location and three attempts at another location. In addition the attorney for the Plaintiff has mailed a copy of the summons and complaint to the address that his most recent unemployment checks were sent and to five other possible addresses for this Defendant.

In addition to these efforts, the Plaintiff has hired a private investigation firm known as New York Investigation Specialists, LLC and this company conducted surveillance activities at different addresses on at least six different days in an attempt to serve the Defendant Gonzales with process. The investigative report prepared by the agency is attached as Exhibit "D" and it indicates that the Defendant does not have a driver's license and does not own a motor vehicle. The search revealed no addresses that could be verified as a current address although several prior addresses were found.

The affidavit of the process server submitted in support of the Plaintiffs proof of attempted service shows inquiry of neighbors or others regarding Gonzales' habits and employment, and many attempts at different times and on different days to serve Gonzales at his possible places of residence or places that he may have frequented(see, Fulton Savings Bank v. Rebeor, 175 A.D.2d 580, 572 N.Y.S 2d 245; see also Lowinger v. State University of New York Health Science Center of Brooklyn, 180 A.D.2d 606, 580 N.Y.S.2d 316, leave to appeal den'd 80 N.Y.2d 753, 587 N.Y.S.2d 904, 600 N.E.2d 631). In addition to these physical attempts to serve the Defendant Gonzales, in May of this year the attorney for the Plaintiff has sent the summons and complaint in a plain envelope marked "personal and confidential" addressed to Gonzales bearing no indication that it was from a law firm or otherwise related to litigation to five separate residential addresses indicated in the report as prior residences. These envelopes have not been returned as undeliverable.

CPLR 308(5) provides that the service may be directed upon motion without notice as this Court may direct "if service is impracticable under paragraphs one, two and four of this section." When, as here, the Plaintiff's effort to obtain information regarding the Defendant's current residence or place of abode through ordinary means are ineffectual and the Plaintiff has submitted proof that demonstrates that service under other methods would be "impracticable," the required showing for the Court to act under CPLR 308 (5) is met. The motion and the supporting documents submitted by the Plaintiff show that not only has the Plaintiff met the standard in CPLR 308 (5), it has satisfied the more rigorous requirement of due diligence contained in paragraph 4 of CPLR 308.

This Court recognizes that "[a]lthough the impracticability standard 'is not capable of easy definition' (Markoff v. South Nassau Community Hosp., 91 A.D.2d 1064, 1065, 458 N.Y.S.2d 672, affd. 61 N.Y.2d 283, 473 N.Y.S.2d 766, 461 N.E.2d 1253), and it does not require the Plaintiff either to satisfy the more stringent standard of 'due diligence' contained in CPLR 308(4), or to make a showing that...