SUPREME COURT OF NEW YORK, NASSAU COUNTY
2009 NY Slip Op 31250U; 2009 N.Y. Misc. LEXIS 5791
May 28, 2009, Decided
June 1, 2009, Entered
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTEDOFFICIAL REPORTS
COUNSEL: Law Offices of Cohen & Slamowitz, LLP, Attorneys for Plaintiff,Woodbury, NY.
Kirschenbaum & Kirschenbaum, P.C., Attorneys for Defendant, By: Gene W. Rosen,Esq., Garden City, NY.
JUDGES: Present: HON. DANIEL R. PALMIERI, Acting Justice Supreme Court.
OPINION BY: Daniel R. Palmieri
SHORT FORM ORDER
Defendant's motion to vacate the default judgment herein pursuant to CPLR Â§5015(a)1, excusable default, CPLR Â§ 5015(a)4, lack of jurisdiction andpresumably CPLR Â§ 317, meritorious defense, is granted pursuant to CPLR Â§5015(a)4, lack of jurisdiction and the action is dismissed.
Plaintiff obtained a judgment by default against defendant on March 6, 2009,in the amount of $ 16,420.18. Defendant's application to vacate is supported byhis own affidavits and affirmations of his attorney, which are of no probativevalue since defendant's attorney does not profess to have any knowledge of thefacts. It is well settled that an attorney's affirmation that is not based onpersonal knowledge or supported by documentary evidence is of no probativevalue. Warrington v. Ryder Truck Rental, Inc., 35 AD3d 152 (2d Dept. 2006);Sampson v. Delaney, 34 AD3d 349 (1st Dept. 2006); cf Davey v. Dolan, 46 AD3d 854(2d Dept. 2007). Here, plaintiff's attorney does not profess to possess personalknowledge of any facts asserted and has not employed his affirmation as avehicle to refer to other competent evidence.
In his affidavits, defendant makes the bald statement, unsupported by anyevidence and with no reference to the affidavit of service, that he "was neverserved with a summons and complaint."
As to a showing of merit, defendant states by way of reply that "I never madean agreement with plaintiff" and "I do not owe the amounts of money thatplaintiff claims I owe." No reference is made to the allegations of thecomplaint which refers to a specific credit account.
A motion to vacate a default may be predicated upon CPLR 317 if made withinone year after a defendant obtains knowledge of the entry of judgment, and thefocus is on the manner of service. When a defendant is served by other thanpersonal service, the provisions of this section become applicable. FleetwoodPark Corp., v. Jerrick Waterproofing Co., 203 A.D.2d 238 (2nd Dept. 1994). CPLR317 is applicable here because service is alleged to have been made pursuant toCPLR 308.4, commonly referred to as "nail and mail." Under CPLR 317 a defendantmust also show that it did not receive actual notice of the process in time todefend, Brockington v. Brookfield Development Corp., 308 A.D.2d 498 (2nd Dept.2001), and there must be a showing of a meritorious defense from a person withknowledge of the facts containing factual material, and not merely conclusoryallegations or vague assertions. Peackock v. Kalikow, 239 A.D.2d 188 (1st Dept.1997). While it is not necessary for a defendant to establish the validity ofits defense as a matter of law, it is necessary to present a defense that ispotentially meritorious. Marinoff v. Natty Realty Corp., 17 A.D.3d 412 (2ndDept. 2001).
Here, for the reasons noted above, defendant has not demonstrated a defensethat is potentially meritorious since his showing of merit consists entirely ofhis terse statement, without more, that he never made an agreement withplaintiff and does not owe any money. As such the judgment cannot be vacatedpursuant to CPLR 317.
A motion to vacate pursuant to CPLR 5015 (a)1, places emphasis on thepresence of an excusable default rather than the manner of service. A court mayconsider the application of CPLR 5015(a)1, even where not raised by the movingparty. On a motion pursuant to CPLR 5015 (a)1, the defendant must demonstrate areasonable excuse for its delay in appearing and a meritorious defense.Dilorenzo v. Dutton, Lumber Co., 67 N.Y.2d 138 (1986). Here the Court finds thatdefendant has not proffered a meritorious defense and other than his claim oflack of service, which is addressed below, he has failed to offer a reasonableexcuse for his failure to defend. Therefore CPLR 5015(a)1, is unavailable to thedefendant.
Defendant's claim of lack of jurisdiction based on CPLR Â§ 5015(a)4, lack ofjurisdiction, is granted but not for the reasons offered by defendant. A processserver's affidavit stating proper service in accordance with CPLR 308,constitutes prima facie evidence of proper service. Sandor Realty Corp. v.Arvis, 209 A.D.2d 682 (2nd Dept. 1994). A conclusory denial of receipt of thesummons and complaint is insufficient to raise an issue of fact which wouldentitle a defendant to a traverse hearing. Id. A sworn denial of service by adefendant will rebut the presumption of proper service where it refutes factualallegations in the process server's affidavit or presents a question of factrather that baldly denying, as defendant has done here, receipt of process.Silverman v. Deutch, 283 A.D.2d 478 (2nd Dept. 1994). Here, the defendant hasfailed to controvert the affidavit of service or to set forth sufficient factsto warrant a traverse hearing, having only hinted at conclusory allegations ofimproper service. At no point does the defendant claim he did not live at theaddress where service of process was mailed and affixed to the door.
Service by "nail and mail" pursuant to CPLR Â§ 308.4 may be employed whereservice under CPLR Â§ 308.1 (personal service) or CPLR Â§ 308.2 (delivering to aperson of suitable age and discretion) cannot be made with due diligence.
The affidavit of service submitted here discloses three attempts at serviceat three different times, including two week days and a Saturday, however, noshowing of due diligence to serve by way of CPLR Â§ 308.1 or 2 has beenproffered. Thus, the affidavit of service, which is the only testimony submittedby the process server is insufficient to show that the process server exercisedthe due diligence necessary to serve someone under CPLR Â§ 308.4. Leviton v.Unger, 56 AD3d 731 (2d Dept. 2008).
The affidavit of service states "served documents as [sic] last known addressper attorneys records", however, the statute requires that service be made atthe actual place of business, dwelling place or usual place of abode of theperson to be served. Notably absent from this list is any reference to thedefendant's "last known address" and notably absent from plaintiff's oppositionis any evidence that the served location meets any of the requirements of thestatute. Merchants Ins. Group v. Coutrier; 59 AD3d 602 (2d Dept. 2009); StateInsurance Fund v. Khondoker, 55 AD3d 525 (2d Dept. 2008).
Further, a failure to make a genuine inquiry about a defendant's whereaboutsand place of employment has been held to fail the test of due diligence evenwhere three service attempts have been made at defendant's home. McSorley v.Spear, 50 AD3d 652 (2d Dept. 2008).
Due diligence has been held to be absent when there has been no attempt tolocate a business address, Sanders v. Elie, 29 AD3d 773 (2d Dept. 2006), wherethe process server failed to attempt to learn the working habits of defendantfrom neighbors, County of Nassau v. Yohannan, 34 AD3d 620 (2d Dept. 2006) orwhen there has been no attempt to check telephone listings or governmentalrecords to ascertain where service may be made. Estate of Waterman v. Jones, 46AD3d 63 (2d Dept. 2007) Balkin, J.
In short, plaintiff's opposition fails to demonstrate that service could notbe made with due diligence and fails to demonstrate what efforts have been madeto effect personal or substituted service. A mere showing of several attemptsat service such as on this case, is not necessarily enough. Due diligence hasbeen said to refer to the quality of the effort made not the quantity orfrequency. Estate of Waterman v. Jones, supra.
Based on the foregoing, the Court finds that plaintiff has failed to acquirejurisdiction over the defendant, the motion to vacate the judgment is grantedand the action is dismissed.
This shall constitute the Decision and Order of this Court.
DATED: May 28, 2009
/s/ Daniel R. Palmieri
HON. DANIEL PALMIERI
Acting Supreme Court Justice