Blogs

Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: January 8, 2021

Mere Denial of Receipt of Service Insufficient to Overcome Affidavit of Service

On December 23, 2020, Justice Friedman of the New York County Commercial Division issued a decision in New Globaltex Co., Ltd. v. Zhe Lin, 2020 NY Slip Op. 34257(U), holding that the mere denial of service is insufficient to overcome an affidavit of service, explaining:

CPLR 308 (b) authorizes service by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business. It is well settled that the terms dwelling place and usual place of abode mean the actual dwelling place or usual place of abode and may not be equated with the last known residence’ of a defendant for purposes of the delivery of papers when substitute service is made pursuant to CPLR 308(2). Further, a person can have more than one residence for the purpose of service. At the hearing, plaintiff established that service was made by substitute service at defendant’s Flushing address. In particular, plaintiff produced the process server, Lattanina Drucker, who gave credible testimony as to her practices in making service and producing records of service. In addition, plaintiff produced Joel Graber, president of United Process Service, Inc., a process serving agency that distributed the work to the process server in this case. He gave credible testimony as to the practices of his company in keeping the records of service. This testimony laid a sufficient foundation for the introduction of the process server’s affidavit of service as a business record.

Plaintiff also established that service was made at the proper address, as the Flushing address was an actual place of residence or usual place of abode of defendant at the time service was made. Plaintiff produced deeds from both before and after the date of service which show that defendant listed the Flushing address as her address. In particular, a deed dated December 14, 2009 lists defendant as the buyer of the Flushing apartment at which service was made. Interestingly, in this deed both the seller and defendant as buyer list the apartment that is the subject of the sale as their address. A deed dated October 31, 2012 shows the transfer of the Flushing apartment from defendant to Ya Yan Ruan. At the hearing, defendant acknowledged that Ya Yan Ruan is her mother. Plaintiff also produced a deed dated January 18, 2014 for a property on Rose Avenue in Queens in which the grantor was Ya Yan Ruan and the grantee was defendant. In this deed, both Ms. Ruan and defendant gave their address as the Flushing apartment. Thus, notwithstanding defendant’s 2012 sale of the Flushing apartment to Ms. Ruan, she continued to use the Flushing apartment as her address in an official document. Moreover, defendant produced a deed dated July 15, 2013 in which Ms. Ruan as seller sold the Flushing apartment. Notwithstanding this sale, Ms. Ruan, like defendant, continued to use the Flushing apartment as her address, as evidenced by the 2014 deed discussed above.

At the hearing, defendant testified that at the time of service she resided at the Woodside address. She failed to give a viable explanation for her continued use of the Flushing apartment as her address after her 2012 sale of the apartment. Defendant testified that the 2014 deed was prepared by the real estate lawyer and that she did not know that the Flushing address was listed. The deed, however, bears her signature. As a sophisticated business person (the former president of the two dissolved corporations at issue in this action), she cannot claim that she did not know, or understand, the contents of a document that she signed.

Moreover, defendant’s testimony that she did not reside at the Flushing address at the time of service was entirely conclusory. The documentary evidence she produced was also insufficient to counter plaintiff’s showing that she continued to reside at the Flushing address. In support of her claim that she lived at the Woodside, not the Flushing, address in April 2013 when service was made, she again submitted the bank statements and EZ Pass statements, which she had submitted in support of the motion to vacate, showing the Woodside address. She failed, however, to submit documents, such as a driver’s license or tax returns, which would have been highly probative of her address and which she could have been expected to have in her possession.

The court accordingly holds that it acquired personal jurisdiction over defendant and turns to the issue of whether grounds exist for vacatur of the judgment. In the closing argument at the hearing, defendant for the first time contended that the default judgment was not properly issued because the complaint had been verified by an attorney without personal knowledge of the facts, and plaintiff had not submitted an affidavit of merit on personal knowledge in support of the motion for the default judgment. This contention, even if properly raised, is without merit.

(Internal quotations and citations omitted).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. Failing properly to serve a defendant with the papers initiating an action can result in its dismissal, regardless of whether the defendant had actual notice of the lawsuit. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding the proper way to serve a defendant, bringing them into a lawsuit.

Click here to subscribe to this or another of Schlam Stone & Dolan’s blogs.

View posts