Moran v. Harting

• Court: New York Supreme Court
• Writing for the Court: JOAN B. LEFKOWITZ
• Citation: Moran v. Harting, 615 N.Y.S.2d 225, 161 Misc.2d 728 (N.Y. Sup. Ct. 1994)
• Decision Date: 23 June 1994
• Parties: John T. MORAN, Roslyn Moran, Rozmar Development Corporation, Margaret Moran, and Roy Sartorius, Plaintiffs, v. Raymond J. HARTING, Defendant.

Page 225

615 N.Y.S.2d 225

161 Misc.2d 728

John T. MORAN, Roslyn Moran, Rozmar Development Corporation Margaret Moran, and Roy Sartorius, Plaintiffs, v. Raymond J. HARTING, Defendant.

Supreme Court, Westchester County.

June 23, 1994.

Eric H. Witlin, Lubell & Koven, New York City, for plaintiffs.

Robert A. Foy, Mt. Kisco, for defendant.

JOAN B. LEFKOWITZ, Justice.

Plaintiffs formed a holding company, H.F. Raab Plumbing & HVAC, Inc. (hereafter "HVAC"), to purchase the stock of two corporations, Henry F. Raab, Inc. and Henry F. Raab, Connecticut, Inc. Defendant is a certified public accountant who prepared a financial statement, dated June 30, 1990, for the shareholders of Henry J. Raab, Inc. That statement was delivered on August 16, 1990. A closing was held on August 20, 1990.

The agreement between the buyers and sellers (but not defendant) called for arbitration on price adjustments, which was subsequently held and HVAC was awarded $85,000. Thereafter, an action for damages under various theories was commenced by HVAC against defendant in the United States District Court, Southern District of New York but was abandoned. Subsequently, the instant action was commenced, by filing the summons and complaint on August 18, 1993, asserting three causes of action: (1) negligence in preparation or certification of financial documents; (2) breach of contract; and (3) fraud. The amended complaint is not verified. Defendant served an unverified answer asserting various affirmative defenses including lack of jurisdiction and statute of limitations.

Defendant moves to dismiss the complaint for lack of jurisdiction, for failure to state a cause of action and as barred by the statute of limitations. The motion also seeks to disqualify plaintiffs' counsel for failure to maintain a New York office.

JURISDICTION

Service was attempted on September 3, 1993 at 8:30 AM (a Friday), September 4, 1993 at 7:30 AM and 3:30 PM and September 7, 1993 at 4:30 PM. A copy of the summons and complaint was left at the front door. The process server says he affixed it with tape to the door. Defendant says he found it wedged between the screen and front doors. Mere wedging is insufficient under CPLR 308(4) and what is required is nailing, taping or some other device to insure adherence. PacAmOr Bearings, Inc. v. Foley, 92 A.D.2d 959, 460 N.Y.S.2d 662 (3rd Dep't 1983). The mode of affixation, therefore, requires a hearing as a factual issue thereon is presented.

Defendant also argues that "due diligence" was not established under CPLR 308(4) by the process server's efforts at his home and that the server was obligated to ascertain his place of employment as the complaint indicated he was a professional accountant. Defendant claims his office is located in the same town where he lives and could be ascertained by reading the telephone directory.

On this issue the Court finds that "due diligence" was exercised in the number of attempts, four, on three different days at different hours. Matos v. Knibbs, 186 A.D.2d 725, 588 N.Y.S.2d 911 (2d Dep't 1992). While service was attempted at defendant's residence over the Labor Day Weekend in 1993, he claims he was home Friday morning, September 3, 1993 and at work September 4 and 7, 1993, so that the fact service was attempted on a holiday weekend is of no moment. Also, while the process server may have a duty to attempt to ascertain defendant's place of employment when such appears in the summons or complaint (Pizzolo v. Monaco, 186 A.D.2d 727, 588 N.Y.S.2d 910 [2d Dep't 1992], that is not the case at bar. Indeed, the documentary evidence merely shows an office on Route 22 in Bedford, New York without a street address or number.

The affidavit of service shows that the mailing to defendant's residence occurred after September 7, 1993 and before September 24, 1993, when the affidavit was sworn to. The affidavit of service was filed on September 29, 1993. The process server, in an affidavit submitted on this motion, states that shortly after September 7, 1993, he mailed a copy of the summons and complaint to defendant at his residence. Defendant does not raise the issue whether such mailing occurred within twenty days of the affixing as required by a 1988 amendment to CPLR 308(4) (L.1988, ch. 125, § 2). It has been held that the timeliness of the mailing is jurisdictional. New York State Higher Educ. Services Corp. v. Palmeri, 167 A.D.2d 797, 563 N.Y.S.2d 358 (3rd Dep't 1990); see statement from Office of Court Administration on purpose of the 1988 amendment, 1988 McKinney's Session Laws of N.Y., vol. 2, p. 2443. Since a hearing has been directed on other issues whereby the process server should testify, the question of the timeliness of the mailing should be definitively resolved thereat.

Additionally, defendant argues that the affidavit of service shows the wrong zip code and misspells the name of the town where he resides, as Bedfrod instead of Bedford. Since defendant denies receipt by mail and there are other alleged service defects to be resolved at a hearing, the issue of whether mailing occurred must be resolved thereat. Kanner v. Gerber, 197 A.D.2d 673, 602 N.Y.S.2d 874 (2d Dep't 1993); Poet v. Kolenda, 142 A.D.2d 633, 530 N.Y.S.2d 589 (2d Dep't 1988).

The fact that had the mail been sent from the wrong postal office to the right one, it would have been delivered is of no moment where, here, the postal authorities indicate that the badly addressed mail probably would not have been redirected to the Town of Bedford. Cf. Brownell v. Feingold, 82 A.D.2d 844, 440 N.Y.S.2d 57 (2d Dep't 1981). Thus, the hearing must resolve the question whether a proper mailing occurred. Avakian v. De Los Santos, 183 A.D.2d 687, 583 N.Y.S.2d 275 (2d Dep't 1992). The fact that defendant received notice of the action does not cure procedural jurisdictional defects. Raschel v. Rish, 69 N.Y.2d 694, 512 N.Y.S.2d 22, 504 N.E.2d 389 (1986); Macchia v. Russo, 67 N.Y.2d 592, 505 N.Y.S.2d 591, 496 N.E.2d 680 (1986).

The fact that the jurisdictional (and limitations) defenses are asserted in an unverified answer in violation of CPLR 3019(c), is of no moment since the pleading was never rejected. CPLR 3022.

Plaintiffs urge that the jurisdictional issue was waived by agreement between counsel on defense counsel's acceptance of the amended complaint. Defense counsel denies such agreement and the documentary evidence does not support plaintiffs' contention of waiver.

LIMITATIONS

Defendant argues that the appropriate period of limitation for the first cause of action in negligence/malpractice is three years. CPLR 214(5), (6). He contends that assuming due diligence in service, both elements of nail and mail had to be made prior to expiration of the period of limitation. At bar, the three year period expired on August 20, 1993.

The action was commenced by filing on August 18, 1993. Service, if proper, was made in September 1993. Under the former commencement by service provisions it was held that delivery and mailing both must occur within the statute of limitations. Greenberg v. Rosenberg, 174 A.D.2d 601, 571 N.Y.S.2d 309 (2d Dep't 1991); Maldonado v. Long Island Jewish Med. Center, 156 A.D.2d 431, 548 N.Y.S.2d 548 (2d Dep't 1989). However, that principle is abrogated by the commencement by filing provisions (L.1992, ch. 216). Under CPLR 304 an action is commenced by filing the summons and complaint. Pursuant to CPLR 203(c), in an action commenced by filing, the claim is interposed upon the filing (CPLR 203[c][2]. While no decision has been reported on this question, the commentators agree that the former requirement of delivery and mailing within the period of limitations is rendered...