Skyline Agency, Inc. v. Ambrose Coppotelli, Inc.

• Decision Date: 12 May 1986
• Citation: 117 A.D.2d 135,502 N.Y.S.2d 479
• Parties: SKYLINE AGENCY, INC., Appellant, v. AMBROSE COPPOTELLI, INC., et al., Defendants, Frank Coppotelli, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 479

502 N.Y.S.2d 479

117 A.D.2d 135

SKYLINE AGENCY, INC., Appellant, v. AMBROSE COPPOTELLI, INC., et al., Defendants Frank Coppotelli, Respondent.

Supreme Court, Appellate Division Second Department.

May 12, 1986.

James P. Maniatis, New York City (David Cohen, on brief), for appellant.

Lemole McCarthy Magnotti & Peter J. Napolitano, Staten Island (Paul A. Lemole, of counsel; Rodney Stilwell and Christopher P. Nalley, on brief), for respondent.

Before GIBBONS, J.P., and BROWN, WEINSTEIN and NIEHOFF, JJ.

BROWN, Justice.

The question to be decided on this appeal is whether an attorney's unauthorized appearance conferred personal jurisdiction over the individual for whom the attorney purported to appear when that individual neither had been served with process nor had become aware of the fact that an action had been brought against him until subsequent to judgment. We conclude that, under such circumstances, personal jurisdiction is not acquired and the judgment entered as a result of such an unauthorized appearance must be vacated.

The defendants Frank Coppotelli, his brother Dominic Coppotelli, and his father Ambrose Coppotelli were the principal shareholders of the corporate defendant, Ambrose Coppotelli, Inc. For several years prior to 1974 the corporation owned a restaurant in Staten Island, together with the real property upon which it was located. During this time, Dominic had been the president and chief operating officer of the restaurant, while his brother Frank and his father Ambrose apparently had not been actively involved in the business.

Sometime in January 1974 George Soumakis, the president of the plaintiff real estate broker, Skyline Agency, Inc. (hereinafter Skyline), approached Dominic to discuss a possible sale of the restaurant and the real property upon which it was situated, as well as a private residence immediately adjacent thereto which was owned by Dominic, his wife, and his father Ambrose. Within a few weeks, a contract of sale was prepared and executed under which the restaurant, the property upon which it was located and the adjacent private residence were to be sold to Avocos Corp., a buyer produced by Skyline. Thereafter, on or about April 25, 1974, the transaction was consummated with the transfer of all of the stock of Ambrose Coppotelli, Inc., together with the private residence, to Avocos Corp. As part of the financial arrangements for the transaction Avocos Corp. gave a purchase money mortgage to Frank, Dominic and Ambrose Coppotelli. Thereafter, the purchase money mortgage was foreclosed and the real properties were conveyed to Ambrose Coppotelli and his sons, as tenants in common.

Shortly before the consummation of the sale to Avocos Corp., Mr. Soumakis and Dominic Coppotelli entered into a brokerage agreement under which Skyline's brokerage commission on the sale was agreed upon in the amount of $45,000, payable in monthly installments of $1,000, subject to the closing of title and the transfer of the business. Skyline claims that thereafter only six installments were paid to it under the agreement.

On or about April 10, 1980, Skyline commenced the instant action against the Coppotellis and Ambrose Coppotelli, Inc., seeking to recover the balance allegedly due under the brokerage agreement. Following service of the summons and complaint upon him, Dominic Coppotelli retained Philip J. Fitzpatrick, an attorney, to appear on his behalf and purportedly to appear as well on behalf of his brother, his father, and the corporation. Following his retention, Mr. Fitzpatrick filed a notice of appearance and an answer on behalf of all the defendants and later interposed an amended answer and filed a demand for a bill of particulars on their behalf.

On March 14, 1983, the parties--the defendants now purportedly appearing by one John Thomas Roesch, as counsel to Fitzpatrick--entered into a stipulation in open court providing for settlement of the action for the sum of $17,000. It was further provided that if payment was not made within 30 days, Skyline could enter a default judgment against the defendants for the entire amount alleged to be due, to wit, $39,000. Thereafter, on May 10, 1983, following the defendants' failure to pay the settlement amount within the allotted time, a judgment was entered pursuant to the parties' stipulation against the defendants in the sum of $39,000. Based upon that judgment, Skyline's counsel thereafter issued an execution, with notice to garnishee, to three individuals who were indebted to Frank Coppotelli under a mortgage and petitioned the court for entry of a judgment directing the mortgagors to pay Skyline the sum of $39,152 in satisfaction of the outstanding judgment against the defendants.

Thereafter, by order to show cause dated October 24, 1983, Frank Coppotelli moved, inter alia, for an order pursuant to CPLR 5015(a)(3) and (4), vacating the judgment insofar as entered against him. In support of his application, he alleged that he had never been served with process in the action and that he had first become aware of the action and of the judgment therein in June of 1983 when execution was levied upon the mortgage payments due to him. He claimed that without his knowledge or consent his brother Dominic had apparently retained Fitzpatrick to defend the action and that Fitzpatrick had entered an appearance on his behalf without his knowledge or authorization and without his ever having been advised of the pendency of the action. In addition, Frank Coppotelli asserted a number of defenses addressed to the merits of the action, including the fact that he had never been a party to the brokerage agreement with Skyline and could not therefore be held accountable thereunder. Also submitted in support of the application was an affirmation of Fitzpatrick in which he acknowledged that he had never had any contact with either Frank or Ambrose Coppotelli and further that "[a]t the time of settlement, and throughout my involvement in this action, I acted pursuant to the instructions of Mr. DOMINIC COPPOTELLI alone, upon the belief that he was authorized to act on behalf of the other named defendants based upon his representation to this effect".

Skyline opposed the motion, arguing, inter alia, that personal jurisdiction was acquired over Frank Coppotelli by personal service upon him of the summons and complaint. It further argued that because of the close relationship among the defendants, it was difficult to believe that Dominic Coppotelli acted without the knowledge of his brother Frank in retaining counsel and that the appearance of Fitzpatrick should thus be held to be binding upon Frank. The plaintiff also submitted an affirmation of one of its attorneys, John F. Welling, who reaffirmed the contents of his prior affidavit of personal service upon Frank Coppotelli, sworn to on April 11, 1980.

By order dated March 13, 1984, Special Term directed that a hearing be held on the issues of whether proper service was effected upon Frank Coppotelli and whether Fitzpatrick had had authority to appear on his behalf. Following the hearing, Special Term concluded that personal service had never been effected upon Frank and that it, therefore, lacked personal jurisdiction over him. Accordingly, Special Term vacated the judgment as against Frank Coppotelli. Based upon its finding, the court concluded that the issue of Fitzpatrick's authority to appear on Frank Coppotelli's behalf had become moot.

While Special Term's determination as to the lack of personal service was, in our view, correct, we do not agree that the question of Mr. Fitzpatrick's authority to appear on Frank Coppotelli's behalf is moot. For the reasons stated herein, we find it necessary to reach that issue and upon our review thereof we conclude that vacatur of the judgment as against Frank Coppotelli was appropriate. Accordingly, we affirm.

At the outset, we address the issue of whether jurisdiction was acquired over Frank Coppotelli by proper service of process. In New York, a civil action is generally commenced and jurisdiction acquired by service of a summons (CPLR 304). While there are a number of methods by which a summons may be served upon a natural person, the method claimed to have been utilized at bar to effect service was personal delivery of the summons pursuant to CPLR 308(1). It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action (Green Point Sav. Bank v. Taylor, 92 A.D.2d 910, 460 N.Y.S.2d 121; Bernardo v. Barrett, 87 A.D.2d 832, 449 N.Y.S.2d 272, affd. 57 N.Y.2d 1006, 457 N.Y.S.2d 479, 443 N.E.2d 953). Ordinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a defendant is sufficient to support a finding of jurisdiction. Where, however, as here, there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing (Anton v. Amato, 101 A.D.2d 819, 475 N.Y.S.2d 298; De Zego v. Donald F. Bruhn, P.C., 99 A.D.2d 823, 472 N.Y.S.2d 414 affd. 67 N.Y.2d 875, 501 N.Y.S.2d 801, 492 N.E.2d 1217 [1986] ). Based upon the evidence adduced at the hearing herein, including the fact that the physical description in the affidavit of service of the individual allegedly served differed considerably from the physical appearance of Frank Coppotelli, and the further fact that the process server failed to identify Frank Coppotelli in court as the person upon whom he had served process, there was a more than adequate basis for the hearing court's determinati that Frank Coppotelli was never personally served with process. Accordingly, we conclude that Special Term properly held that personal jurisdiction over Frank Coppotelli was not acquired by personal service of process upon him (CPLR 304, 308[1] ).

However, as indicated, we disagree with...