CIVIL COURT OF THE CITY OF NEW YORK
KINGS COUNTY
DEFENDANT’S REPLY TO PLAINTIFF’S OPPOSITION DEFENDANT’S MOTION FOR TRAVERSE HEARING
Defendant, Warren E. Wexler appearing PRO SE, hereby files Defendant’s Reply to Plaintiff’s Opposition of Defendant’s Motion for Traverse Hearing [New York State Rules of Civil Procedure S. 306-B].
Plaintiff’s Opposition must be denied because there are genuine material facts in dispute and Plaintiffs are not entitled to proceed with the case for want of personal jurisdiction per New York State Rules of Civil Procedure S. 306-B. As discuss below, Defendant’s Rebuttal to Plaintiff’s Opposition is not supported by facts or law and should therefore be denied.
INTRODUTION AND STATEMENT OF FACTS
On January 20, 2020, the plaintiff, who is a foreign corporation, filed a formal complaint against the defendant at this court. (Exhibit A, page 2) alleging inter alia: that the defendant made credit card purchases and/or took money advances under a credit agreement, and that the defendant is still in default of the said credit. Further, that the defendant has failed to respond to demand for payment from the plaintiff.
On January 20, 2020, the plaintiff filed summons at this honorable court. (Exhibit A, page 1). The summons filed by plaintiff shows that defendant was NOT personally served with the summons and complaint. According to the plaintiff’s Affidavit of Service, on February 6, 2020, the plaintiff, through a process server, served the summons and the complaint to one John Doe, who is NOT known to the defendant. (Exhibit A, page 3).
The server handed the process to a random individual, the said John Doe, who was walking out of the lobby of a building with 20 units. There were a lot of people in the lobby at such times as the process server alleges to have served the processes. Further, the process server expressly acknowledges that he gave directions to the said John Doe, to present the processes on a bespectacled man. (Exhibit A, page 3). The defendant does NOT wear glasses. (Exhibit A, page 3). Therefore, it is highly unlikely that the process server rightly served the processes as required under law.
Consequently, the Plaintiff filed an action against the Defendant for settlement of Defendant’s account. On or about May 12, 2020, the case appeared for conference where the Honorable Judge granted the Defendant’s request to file the said Motion for Traverse Hearing. (Exhibit A, page 5).
In the said Motion, the defendant denies being personally served and alleges that he had no knowledge of the summons and complaint, nor that anyone was attempting to serve him. The defendant contends that the service on him was improper and the Court should quash the purported service on him.
Accordingly, the Defendant avers that the Plaintiff lacks a valid response against the Defendant’s motion as alleged in the arguments set forth herein.
II
ARGUMENTS
- THE HONORABLE JUDGE GRANTED THE DEFENDANT LEAVE TO FILE MOTION FOR TRAVERSE HEARING
The Honorable Judge Dweynie E Paul expressly ordered the Defendant to file the Motion for Traverse Hearing. (Exhibit A, page 5). (In the hand-written comments of the judge).
The Plaintiff failed to mention the Honorable judge’s comments at the time of the case conference. They also failed to list the comments in their opposition. Such conduct proves the dishonest nature of the Plaintiff in that they intentionally left out the said comments. It is a well laid principle of law that he who comes to equity must come with clean hands. The Plaintiff’s conduct above goes a long way in showing the untrustworthiness of the Plaintiff.
The Plaintiff contends that the Defendant’s failure to move for dismissal on or before April 20, 2020, consists of the Defendant’s waiver of the Defense of improper service per CPLR 321 1(e). This argument fails to hold ground by reason of the said interim Court Order dated May 12, 2020. where the Honorable judge expressly ordered the Defendant to file the Motion for Traverse Hearing.
The Defendant further avers that disputing a court order cannot be done by writing an opposition to a party to the dispute. CPLR 5015 provides for relief from a judgment or order. The Section states in part “… The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct…”. CPLR 5015 (a).
It follows; in this case, the Plaintiff ought to have appealed the Order. In Veloz v. Christie, the court held that “… this court is permitted, upon plaintiff’s appeal from the portions of the order that were adverse to him, to review the remaining portion of the order”. 2014 NY Slip Op 50968(U). (emphasis mine).
- THE COURT LACKS PERSONAL JURISDICTION OVER THE CASE BECAUSE THE PLAINTIFF’S PURPORTED SERVICE OF THE SUMMONS AND COMPLAINT IS NOT VALID
The Defendant restates the argument(s) in the Defendant’s Motion for Traverse Judgment and maintains that the Plaintiff did not effect proper service of the Complaint and the Summons. Therefore, the Plaintiff’s case should be dismissed for want of personal jurisdiction.
- The process server did not personally serve the defendant.
Based on the evidence of service enclosed by the Plaintiffs in their opposition, the process server served the process on a bespectacled man (EXHIBIT B). This person was a random individual who was served in the lobby of the building of a 20-unit apartment building where many of people live. There were many people coming in and out of the building that do not live there also. Besides, there were many people that live in each apartment. Such service defies all provisions and requirements under the law.
It is trite law that even slight departures from the rules of service of processes can affect cases drastically. In re Pfau v Forster & Garbus et al., the service done by the Plaintiff was cancelled after it was found that the server made no effort to ascertain if the place to which service was being made was the Defendant’s location. Index No. 2009-8236 (Erie County Supreme Court) [July 2009].
If improper service is established, it would be clearly sufficient to rebut the presumption of proper service. See American Sav. & Loan Assn. v Twin Eagles Bruce, 208 AD2d 446. In Cipriano v Hank, the plaintiff’s service failed to meet the presumption of proper service because the service was done improperly. As a result, all subsequent proceedings in the case were declared null and void. 197 AD2d 295.
To obtain personal jurisdiction over the defendant, service must have been made in a statutorily prescribed manner. Krisilas v Mount Sinai Hosp., 63 AD3d 887 [2d Dept 2009]. According to Rule 5015 (a) (4) of the New York Civil Procedure Law Rules, an action can be dismissal where the court lacks personal jurisdiction over the defendant. (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5015:9.). Notably, in such circumstances, the action should be dismissed even if the defendant does not have a meritorious defense to the action. It follows; because of the Plaintiff’s bad service, the plaintiff’s case should be dismissed for want of personal jurisdiction.
A substituted service, as was relied upon by the plaintiff, is the one which is reasonably calculated to give actual notice. Milliken v. Meyer, 8 311 U.S. 457 (1940). Besides, before service can be made, the process server must make a genuine inquiry regarding the defendant’s whereabouts and place of employment. McSorley v Spear, 50 AD3d 652 [2d Dept 2008]. Therefore, the server should have made sure that he got the defendant’s description clearly before effecting service.
- Due Diligence: Service at the lobby of a building, to a stranger, is improper service.
New York Code of Civil Procedure Section 308 (4) states in part that: “Where service … cannot be made with due diligence, (it can be done) by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons … to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential”.
Under this Section, a finding of “due diligence” has been defined as requiring a process server to make several visits on separate occasions and at different times at both the defendant’s actual residence and place of business, if known. See Barnes v. City of New York, 70 App. Div. 2d 580, 416 N.Y.S.2d 52 (2d Dep’t). See also, Gureje v Richardson, 59 AD3d 494 [2d Dept 2009]. Further, a process server attempting service cannot relax in his attempts to verify the defendant’s actual premises once he believes that he has met the “due diligence” standard. Feinstein v. Bergner, 422 N.Y.S.2d at 357-58.
If the defendant fails to exercise due diligence before making service pursuant to the rules of service, the service is defective as a matter of law. Schwarz v Margie, 62 AD3d 780 [2d Dept 2009]
A strict interpretation should be given to the provision of Section 308(4) of New York Code of Civil Procedure. An interpretation that would justify service in such circumstances as in the present case (at the lobby of a public building) would be unacceptable because adequate notice to the “readily accessible defendant” would not be guaranteed. Mullane v. Central Hanover Bank and Trust Co., 399 U.S. 306 (1950).
It is not clear whether the process server made several visits at the place he served the process. And in the event the server could not clearly ascertain the defendant’s abode, the server had the option of posting the service via mail. An option which he ignored. Instead, the server issued the process to a stranger in the lobby of a building. There were a lot of people in the lobby at such times as the process server alleges to have served the processes. In such circumstances, where there are a lot of people entering and exiting the building, he could not possibly identify the defendant.
Summons received by the defendant following an improper service are not binding and should be quashed. Improper summons subverts the purpose of service or threaten to disrupt the administration of justice.
A person against whom a default judgment has been entered can, of course, move to set aside the judgment on the ground that he was, in fact, not served with process. Gale v. Saunders, 210 N.Y.S.2d 109 (Sup. Ct. 19). In Feinstein v. Bergner, the Court of Appeals affirmed this position by holding invalid, summons which were improperly served, despite the defendant’s actual receipt of the summons and the plaintiff’s reasonably good faith effort to perfect service. 422 N.Y.S.2d 356 (1979).
Such service amounts to “sewer service”. The court in United States v. Brand Jewelers Inc. stated that a sewer service is service done with “apt inelegance”. 318 F. Supp. 1293 (S.D.N.Y). Sewer services deprive the defendants’ rights, privileges, and immunities secured and protected by the Constitution and the laws of the United States. 18 U.S.C. S. 242.
- THE PLAINTIFF’S AUTHORITIES ARE NOT SUFFICIENT TO PERSUADE AND/OR BIND THIS HONORABLE COURT
The Defendant avers that the Plaintiff’s Legal Standard for what is necessary to establish Personal Jurisdiction is irrelevant and incorrect:
- Genway Corporation v. Elgut, 177 A.D.2d 467, 575 N.Y.S.2d 899 (2nd Dept. 1991).
In this case, the Defendant failed to dispute the veracity or content of the Plaintiff’s affidavit of service. The Defendant further failed to allege any facts to substantiate his conclusory assertion that he was not properly served with process.
In the current case, the Defendant is not disputing what the process server wrote in the affidavit. Instead, the Defendant avers that the Process server had no way of knowing if the individual served was a member of the Defendant’s household because there were many people in and out of the building. The Defendant has further submitted substantive facts and law as to the impropriety of the Plaintiff’s summons. It follows; this authority lacks weight in that regard.
- Simmons First National Bank v. Donald Mandracchia et al., 248 A.D.2d 375 (1998) 669 N.Y.S.2d 646.
In this case, the Appellants opposed the summary judgment against them on the grounds of improper service. The court held that it did not err in denying their motion to vacate the default judgment of foreclosure and sale without holding a hearing to determine the validity of service of process.
Clearly, this case involves an opposition to a Summary judgment of foreclosure. This departs from the current case where the Defendant seeks a traverse hearing to dismiss the Plaintiff’s service as improper.
- Remington Investments, Inc. v. Saul Seiden et al., 240 A.D.2d 647 (1997) 658 N.Y.S.2d 696.
In this case, the appellants’ sole contention on appeal is that the court erred in deciding the jurisdictional issue without holding a hearing. This departs from the current case where the contention is the Defendant’s Pre-trial opposition to the Plaintiff’s service.
- Richard Bossuk et al. v. Alfred Steinberg, 58 N.Y.2d 916 (1983).
In this case, the issue was about delivery of a summons by leaving it in the “general vicinity” of the appellants who “resisted” service. This case departs from the current one because the Plaintiff failed to identify the Defendant and served the wrong individual, a random person unknown to the Defendant.
IV
CONCLUSION
For the foregoing reasons and all the others discussed in the Defendant’s Motion; also, the Plaintiff’s strategy in its opposition to use sophistries, misleading information, out-of-context statements, and purported as material facts to make their point, are now fully and thoroughly refuted. Therefore, the Plaintiff’s opposition should be DENIED.
Accordingly, the Defendant moves this court to give due consideration to the Defendant’s position and dismiss this case for lack of personal jurisdiction as to the Defendant and/or upon good cause shown or in the interest of justice, extend the time for service.
DATED: _________________
ADDENDUM
INDEX
- Affidavit in support of Defendant’s Response to Plaintiff’s Opposition
……… Page 11
- Certificate of Service ……………………………………………………… Page 14
- EXHIBIT A:
- a) Plaintiff’s Summons ……………………………………………… Page 15
- b) Plaintiff’s Complaint …………………………………………….. Page 16
- c) Plaintiff’s Affidavit of Service …………………………………… Page 17
- d) Defendant’s Written response to Plaintiff’s claim …………….. Page 18
- e) Discovery Order ………………………………………………….. Page 19
- EXHIBIT B: Photo of the Person Served ……….………………………… Page 20
| CIVIL COURT OF THE CITY OF NEW YORK | |||||||||
| COUNTY OF KINGS | : PART | ||||||||
| DISCOVER BANK | |||||||||
| Plaintiff, | REPLY AFFIDAVIT | ||||||||
| -against- | Index No. 002438 | ||||||||
| WARREN E. WEXLER | |||||||||
| Defendant. | |||||||||
| STATE OF NEW YORK | ) | |||||
| COUNTY OF KINGS | ) ss.: | |||||
| I, WARREN E. WEXLER | , being duly sworn, hereby deposes and says: | |||||
- I am the Defendant in the above captioned matter.
- I am over the age of 18 years and am a party to this action. I have personal knowledge of the
facts stated in this declaration, and if called as a witness, could and would testify competently to
the truth of the facts as stated herein.
- The summons filed by Plaintiff shows that I was NOT personally served. I was
never personally served with the summons and complaint for Plaintiffs lawsuit.
- At no time was personal service on defendant WARREN E. WEXLER ever attempted by Plaintiffs.
- Service was done to a random individual walking out of the lobby of a large building with 20 units.
- I had no knowledge that anyone was attempting to serve me, and I could have been reached
for personal service at my residence.
WHEREFORE, THE UNDERSIGNED RESPECTFULLY REQUESTS THE WITHIN MOTION BE GRANTED.
| Signature | ||
| Sworn to before me this | day of | 20 |
Notary Public/Court Employee
CIV-GP-123-i
CERTIFICATE OF SERVICE
I hereby certify that on this [ENTER DATE], the foregoing document of case: 002438 was sent to the below address by the delivery method of first-class mail, postage prepaid:
DATED: _______________________
SIGNED: ______________________
EXHIBIT A
EXHIBIT B
.
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