In this action, plaintiff, a New York corporation, engaged in the business of importing and selling fine oriental rugs and carpets, ("carpets"), seeks, among other things, to recover $272,976.72 from defendants for goods sold and delivered, and attorney's fees, and costs.

Defendants move for an order granting summary judgment in their favor dismissing the complaint, pursuant to CPLR 3212, on the grounds that valid service has not been effected on them, and that the Court has no basis to exercise personal jurisdiction over them. Plaintiff cross-moves, pursuant to CPLR 306-b, for an extension of the time to re-serve the summons and complaint under the current index number.

Specifically, plaintiff alleges that, prior to May 17, 2005, it sold and delivered to Said, Sam, and IMG, 282 carpets of a total value of $184,010.00, as set forth on invoice number 3704, and that at the time of delivery, Said, Sam, and IMG agreed to pay plaintiff that amount for the carpets, reduced by the value of returns made within a time frame that plaintiff does not specify. Plaintiff further alleges that thereafter, Said, Sam, and IMG returned $6,618.77 of merchandise, leaving a total owed of $177,391.23, no part of which has been paid.

Plaintiff also contends that, prior to July 12, 2005, it sold and delivered to Said, Sam, and IMG, 185 carpets, with a total value of $115,585.49, as set forth on invoice number 3751, and that at the time of delivery, Said, Sam, and IMG agreed to pay that amount, reduced by the value of carpet returns. Plaintiff contends that Said, Sam, and IMG thereafter returned $20,000.00 of merchandise, and made payments of $40,000.00, but still owed a balance of $95,585.49 for the carpets retained.^[FN2] Plaintiff claims that it sent an invoice to IMG, dated February 16, 2007, that lists both invoices 3704 and 3751, and indicates that there is a balance due of $272,976.72.

Plaintiff appends copies of the above-referenced invoices to the complaint. The May 17, 2005 and July 12, 2005 invoices are on plaintiff's letterhead, with a Secaucus, New Jersey address. They indicate that the carpets were sold and shipped to International Market Gallery, at 1830 Harrison Street in San Francisco, California, and that the customer number is "148" (Said Mov. Aff., Exh. F [Complaint]). Based on these facts, plaintiff has asserted causes of action grounded in theories of breach of contract, account stated and unjust enrichment, claiming damages of $272,976.72 on the former two causes of action, and $350,000 for the latter.

Plaintiff also seeks payment from Said and Sam of $272,976.72 in damages based on personal guarantees that it claims they signed for payment of IMG's debts and obligations. Specifically, plaintiff alleges that on June 3, 2003, in partial consideration for the carpet sales described above, Said signed a guaranty to plaintiff to make sale and delivery of the carpets. [*3]Plaintiff asserts identical allegations against Sam, based on an instrument dated August 14, 2003.As the basis for a separate cause of action which plaintiff labels as a fraud claim, plaintiff claims that Said and Sam entered into a scheme through which they "hoped and intended to defraud, confound, obstruct and frustrate" plaintiff by inducing it to sell and deliver carpets to IMG which were thereafter to be shifted over, for resale, barter or use, to Khyber Pass and/or Kanduz, or another entity (Complaint, ¶ 26). Plaintiff also contends that Said and Sam formed and maintained IMG without sufficient resources to pay for the rugs, shifted the rugs to Khyber Pass or Kanduz for sale, and pocketed the proceeds.

In support of their summary judgment motion, defendants submit the affidavits of: (1) Said, who swears that he is IMG's operations manager; (2) Sam, who swears that he is the president and sole shareholder of Khyber Pass; and (3) Joseph Sedillo, who swears that he is the president of Kanduz. Said also submits copies of corporate documents, federal income tax returns, and the California "Seller's Permits" of the three business entity defendants to support defendants' contention that they are separate California corporations.

Defendants also submit plaintiff's process server's affidavits of service for the summons and complaint. These five affidavits state that service was made on May 4, 2007, through the delivery of the summons and complaint to "Mireille Moore, employee in charge" at 350 Kansas Street, San Francisco, California (350 Kansas Street).^[FN3]

Said swears that IMG did not at any point occupy the premises or conduct business at 350 Kansas Street. Sam swears the same concerning Khyber Pass. The Individual Defendants also both swear that they do not reside at 350 Kansas Street, and that this location is not their usual place of abode, or business address, and that they have no proprietary interest in, and have not served as officers or employees of Kanduz, which is wholly owned by Joseph Sedillo and Abdul Basir.

Furthermore, the Individual Defendants both swear that IMG and Khyber Pass have not, at any point, had an agent, manager, general agent, cashier or assistant cashier named Mireille Moore, or any relationship with Moore. Joseph Sedillo swears that he and Abdul Basir own Kanduz, and that on May 4, 2007, it was doing business at 350 Kansas Street and employed Moore as an assistant salesperson, but that she had no managerial or financial responsibilities, and was not an officer, manager, general agent, cashier or assistant cashier of Kanduz.

Sedillo further swears that Kanduz does not have stores, outlets, employees, a sales force or other agents, property, or bank accounts in New York, and does not advertise or solicit business here. Said and Sam aver the same concerning, respectively, IMG and Khyber Pass. Said further avers that IMG was at all relevant times a purely retail operation, maintaining a series of retail outlets situated in and around the San Francisco Bay area, without a presence of any kind within New York.

Said swears that invoices 3704 and 3751 came about following a series of visits by plaintiff's principals to IMG's offices in San Francisco, California, during which time IMG agreed, after seeing samples of the merchandise that plaintiff displayed in IMG's San Francisco facility, to accept, subject [*4]to IMG's right to return any items found to be unsuitable for retail sale, the carpets listed on those invoices.^[FN4] Said further swears that the carpets in the invoices were shipped from New Jersey to California, as reflected on the invoices, and that the transactions included no New York-based negotiations or execution of any contract or related documents.

Said avers that he did not sign the guaranty annexed to the complaint, and that it does not bear his signature. Sam essentially swears the same concerning the guaranty that is the basis of plaintiff's sixth cause of action against him.

Although defendants move for summary judgment only on jurisdictional grounds, as background, they argue that this action is without merit because they have fulfilled all of their obligations to the plaintiff. Specifically, Said swears that IMG and plaintiff entered into an "accounting" on October 17, 2005, written on California-based IMG's letterhead, and executed in California. Defendants submit the October 17, 2005 document which sets out an installment payment schedule, and states that it is a settlement between plaintiff and IMG and that "Lahore . . . is accepting full and final payment for all invoices for $265,500.00" (Said Mov. Aff., Exh. B). Defendants also submit documentary evidence which they claim establishes that they made payments totaling $198,450.00. Said also swears that, in addition to the $198,450 in payments, defendants returned merchandise to plaintiff, and that "[b]y May 16, 2006, [plaintiff], having concededly received and accepted $198,450.00 in monetary payments, plus an additional $65,000.00 in admitted merchandise returns, acknowledged . . . in a facsimile transmission that IMG received on June 1, 2006," that there was no balance owed (Said Mov. Aff., ¶ 7, Exh. E [Acknowledgment]).

In opposition, plaintiff submits the affidavit of Asim Butt, who swears that he is an officer of the plaintiff corporation. Contrary to defendants' contention, Butt states that there was no accounting between the parties, but only a settlement agreement, that the Acknowledgment is a forgery, and that defendants did not return merchandise to plaintiff as they claim, but only requested that plaintiff store the carpets so that defendants could sell them at a summer carpet show to pay down the debt owed to plaintiff, which they did not do. Butt also avers that the returned carpets' value is not $65,000.00 as asserted by defendants.^[FN5]

Butt states that plaintiff has been doing business with Sam and Said for over five years, and that during the course of the business relationship, they told him that they own or control all of the corporate defendants. Butt contends that plaintiff has always understood that it was doing business with IMG, and that this understanding did not change until after the rugs for which payment is sought here were sold and shipped to the Individual Defendants. Butt states that the Individual Defendants have also done business with plaintiff through Khyber Pass and Kanduz, but does not indicate that the transactions depicted in the Complaint have anything to do with those two defendants. [*5]

When Sam and Said came to New York, Butt states, they would come to Lahore's offices on East 32nd Street, where he was present, and one of the Individual Defendants would sign an invoice for carpets, and either select carpets for shipment, and/or take them to their California store [Butt Aff., ¶ 5]),^[FN6] and that on May 17, 2005, the date of invoice number 3704, both Said and Sam were present in his office. Butt swears that on each occasion that Sam or Said came to plaintiff's office, the terms upon which defendants were to pay for such carpets were discussed and agreed. He describes defendants' contention that contracts were made in California as bogus, and states that Sam and Said came regularly to New York on 10 or more occasions, over the course of years, to obtain carpets, including those that are the subject of this action.

Butt disputes defendants' assertion that there was an accounting, and swears that the Acknowledgment is a forgery. He swears that defendants had an outstanding balance of $277,976.72,^[FN7] and the parties arranged a settlement agreement for $265,500.00, with scheduled payments that defendants did not fully make, or make on time. Butt swears that the parties' settlement agreement was to be void if defendants did not meet the payment schedule, upon which event they would owe the full balance of $277,976.72, less any payments made. Butt does not dispute that defendants paid $198,450.00, but avers that they did not comply with the agreed payment schedule, leaving at least $66,550.00 unpaid. Butt states that in late winter 2006, plaintiff advised defendants that IMG was in default of the settlement agreement, and that IMG and the Individual Defendants would have to pay everything that was still owed prior to its making, reduced by the payments made thereafter. Butt swears that the carpets that defendants sent back to plaintiff for storage did not satisfy the settlement agreement, or the debt owed, and that defendants still owe plaintiff the $277,976.72 that was due prior to the settlement agreement.^[FN8] [*6]

DISCUSSION

It is well settled that plaintiff, as the party seeking to assert jurisdiction over the nondomiciliary defendants, bears the burden of proof on the issue of jurisdiction (Ying Jun Chen v Lei Shi, 19 AD3d 407, 408 [2d Dept 2005]; O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199 [1st Dept 2003]); see Brinkmann v Adrian Carriers, Inc., 29 AD3d 615, 616 [2d Dept 2006]; Opticare Acquisition Corp. v Castillo, 25 AD3d 238 [2d Dept 2005]; Persaud v Teaneck Nursing Ctr., 290 AD2d 350, 351 [1st Dept 2002] ["(i)t is well settled that the plaintiff has the burden of

proving, by a preponderance of the credible evidence, that service was properly made"]). Strict compliance with all of the service requirements of CPLR 308 and 311 is required in order to obtain jurisdiction (Persaud, 290 AD2d at 351; see Olsen v Haddad, 187 AD2d 375 [1st Dept 1992], lv denied 81 NY2d 707 [1993]).

CPLR 311 (a) (1) requires that service upon any foreign corporation be made on "an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service." Defendants have met their burden on summary judgment concerning improper service. Plaintiff does not take issue with Said's sworn statement or the documentary evidence that defendants submit to demonstrate that the three defendant business entities are separate, California corporations. Furthermore, through Said and Sam's affidavits, defendants have demonstrated that Moore had no relationship to IMG and Khyber Pass when service was made. Defendants have also demonstrated, through Sedillo's Affidavit, that Moore was an assistant salesperson, without management or administrative responsibilities. Without more, such persons cannot be deemed to be within the categories of those to whom service of process may be delivered pursuant to CPLR 311 (see e.g. Gleizer v American Airlines, Inc., 30 AD3d 376, 376 [2nd Dept 2006] [finding service upon receptionist who was "clearly not an officer, director, managing agent, or cashier of the corporation and there is no evidence that she was an agent authorized by appointment or law to accept service on its behalf" ineffective]; Colbert v International Sec. Bur. Inc., 79 AD2d 448, 452 [2nd Dept 1981] [determining that person who did not possess "supervisory duties or any administrative power to act on behalf of the corporation" was not authorized to accept process for corporation]).

While plaintiff's counsel contends that its submission of Kanduz's checks made payable to Moore demonstrate that she was "simultaneously an employee and/or agent of the Defendants," it does not explain, and the Court cannot fathom, how such a conclusion, and the quantum leap that she was a suitable person to receive service of process, may be reasonably drawn based only on the checks (Rapaport Aff., ¶ 7). Plaintiff also submits its counsel's affidavit stating that Moore indicated that she was the office manager and person of suitable age and discretion, without the basis for this assertion. While service may indeed be made on an employee where the corporation cloaks him or her with authority (see Matter of Pullo, 224 AD2d 698, 699 [2d Dept 1996]), plaintiff's submission of its counsel's affidavit alone does not defeat summary judgment, as "an attorney's affidavit is accorded no probative value [on summary judgment] unless accompanied by documentary evidence that constitutes admissible proof" (Lupinsky v Windham Constr. Corp., 293 AD2d 317, 318 [1st Dept 2002]; Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Plaintiff has not offered testimony or sworn affidavits from the process server, or other admissible evidence, to raise an issue [*7]of fact as to whether Moore was employed by IMG or Khyber Pass and within the class of persons enumerated in CPLR 311 (a) (1), and thus has failed to raise an issue of material fact, or to sustain its burden of proof of proper service on the three defendant corporations.

As to the Individual Defendants, pursuant to CPLR 313 service of process upon a person who is not a New York domiciliary must be effectuated "in the same manner as service is made within the state." CPLR 308 (2), which governs service on a "natural" person in the state of New York, permits process be delivered "to a person of suitable age and discretion at the actua1 place of business, dwelling place or usual place of abode of the person to be served," followed up with a mailing to the person to be served at his or her last known residence or his or her actual place of business.^[FN9] Although plaintiff's counsel states that a copy of the summons and complaint for each of the defendants was given by plaintiff's process server to Moore at the last known location where the defendants were conducting business, he provides no admissible evidence to challenge defendants' showing that 350 Kansas was not the Individual Defendants' actual place of business, dwelling place, or abode. Although plaintiff states that if it were permitted limited discovery of the defendants, it will be able to demonstrate that service upon IMG was made through Moore, who was acting as an office manager, it fails to provide a basis for this assertion. Furthermore, as " it remains the law in this forum that compliance with statutory service requirements is not obviated by a defendant's actual receipt of service'" plaintiff's demonstration that the defendants are in receipt of process is unpersuasive (Matter of 72A Realty Assoc. v New York City Envtl. Control Bd., 275 AD2d 284, 286 [1st Dept 2000], quoting New Hampshire Ins. Co. v Wellesley Capital Partners, 200 AD2d 143, 150 [1st Dept 1994]; Raschel v Rish, 69 NY2d 694, 697 [1986]).

Plaintiff moves, pursuant to CPLR 306-b, for an extension of time to use the current index number, "in the interest of justice," in order to attempt to re-serve defendants (Rapaport Aff., ¶ 12). CPLR 306-b provides that "[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after" filing. It is within the court's discretion to extend the time for service "upon good cause shown or in the interest of justice" (CPLR 306-b). Thus, a court may in the interest of justice, "extend the time for service if to fail to do so would result in an injustice" (2 Weinstein-Korn-Miller, NY Civ Prac ¶ 306-b.03). Plaintiff does not point to a statute of limitations [*8]issue concerning what appears, from the Complaint, to be 2005 sales transactions, or any other potential injustice, and has not demonstrated that it diligently attempted to determine IMG or Khyber Pass's addresses, or a residential or business address for the Individual Defendants.^[FN10] Accordingly, the court "shall dismiss the action without prejudice" (CPLR 306-b). As the Court is granting summary judgment based on plaintiff's failure to properly effect service on defendants, no determination is made as to the issue of jurisdictional basis.

ORDERED that the motion for summary judgment is granted and the complaint is dismissed; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: April 7, 2008ENTER:

New York, New York

s/

____________________________________

J.S.C