The action underlying this motion alleges a breach of a contract entered into by Defendant whereby he hired Plaintiffs to transport certain personal property from New York State to New Mexico.

In this pre answer motion, dated September 27, 2011, Defendant, Stephen Kirschenbaum, moves for an order dismissing Plaintiff's complaint pursuant to NY Civ. Pract. Laws & Rules (CPLR) §3211(2) - lack of subject matter jurisdiction, and (8) - lack of personal jurisdiction. Specifically, Defendant alleged that:

1) the affidavit of service was defective thereby rendering service defective

2) Defendant was never served the summons and complaint

3) the summons was defective since it does not allege the amount demanded in the complaint, and

4) Defendant has no contacts with New York for personal jurisdiction.

Plaintiffs, Plycon Transportation Group, LLC and Plycar Transportation Group, LLC, opposed the motion.

The action and motion were transferred to this Court on June 15, 2012. On July 26, 2012, counsel for both parties appeared before this Court for conference. The Court was informed that while this motion was pending, Defendant herein filed a lawsuit against Plaintiffs in New Mexico pertaining to the same transaction. The date of the New Mexico filing was November 8, 2011. This Court referred all issues raised in Defendant's Motion to Dismiss for a Traverse Hearing to be conducted on August 30, 2012. Subsequently, this Court requested both counsel to provide this Court with a copy of the New Mexico pleadings filed by Defendant. Those pleadings were received by this Court, with copies to both counsel, on August 17, 2012. After reviewing the New Mexico pleadings together with the New York pleadings, this Court finds sufficient facts upon which to render a decision on this motion without conducting a Traverse Hearing.

Defendant resided in Mt. Kisco, New York, when he entered into an agreement with Plaintiffs. The agreement was that Plaintiffs would transport certain personal property from Mt. Kisco to Santa Fe, New Mexico. Specifically, the property was to be delivered to 100 Camino Del Cerezo, Santa Fe, New Mexico. The shipping agreement listed the 100 Camino Del Cerezo property as a bed and breakfast.

Defendant was an attorney who at one time was licensed to practice in New York State (his current registration is listed as delinquent). Annexed to the Defendant's motion was a document purported to be Defendant's affirmation. It was not executed "under penalty of perjury as an attorney authorized to practice in New York State." Instead, the non-notarized document stated:

"I am signing this affirmation without notarization pursuant to NMRA 1-011(B) as amended in 2008."

In that document, Defendant stated: [*2]

"I have never been served with a summons and complaint,"

"At no time has a process server ever come ..[omitted] to my home,"

"I became aware of the complaint when I saw [it] on the grounds outside of the Hacienda Del Cerezo, a resort located outside of Santa Fe, New Mexico,"

"Carey Bennett is a landscaper employed by Hacienda Del Cerezo, LTD. He has absolutely no authority to accept service on behalf of me," and

"As set forth in [Bennett's] affirmation, he was not served the complaint."

The next document attached to Defendant's motion was purported to be an affirmation by Carey Bennett. Bennett, not an attorney, which stated:

"I am signing this affirmation without notarization pursuant to NMRA 1-011(B) as amended in 2008,"

"On or about August 6, 2011, I was vacuuming the outside courtyard at the entrance to the hotel known as Hacienda Del Cerezo. A young man walked through the gate and asked me if my boss' was here. I said no',"

"The man asked can you reach him' and I responded no.' The man standing in the courtyard said I am going to leave this here.' I backed away," and

"The man dropped some papers he was holding on top of the vacuum cleaner and left. I never touched any papers, never picked them up. I saw them blowing in the wind, out on the ground, where they blew for quite some time."

Defendant's attorney submitted a memorandum of law. The memorandum failed to contain any law, statutory or decisional, supporting Defendant's motion. The attorney stated,

"No person of suitable age and discretion was served," and

"The envelope sent has no legend of "personal and confidential," and bears the return address of the process serving company."

In a reply to Plaintiff's opposition, Defendant stated (again absent an attorney's affirmation, or sworn statement),

"I have a residence at 100 Camino Del Cerezo, Santa Fe, New Mexico."

To the document, Defendant attached a copy of an envelope addressed to

Stephen Kirschenbaum

100 Camino Del Cerezo

Santa Fe, NM 87508 [*3]

The envelope reflected a return address of:

Que Pasa

225 Artist Rd

Santa Fe, NM 87501

The postage paid US postmark was August 26, 2011. Defendant further stated,

"The place where the process server went is not my residence. My residence is almost one mile from where the process server went," and

"[Plaintiff] describes the mini-history with me in Mt. Kisco, New York to arrange for his company to move my belongings [omitted]. Absolutely nothing in that history is relevant to this motion."

Defendant also submitted a copy of the Plaintiff's affidavit of service. The affidavit was inscribed that on August 6, 2011, at 12:10PM at 100 Camino Del Cerezo, Santa Fe, NM, deponent served the summons and complaint upon Stephen Kirschenbaum. Service was effected by delivering a true copy of each to John Doe/Coworker, Refused Name, described as male, aged 35 . The place of service was defined as Defendant's place of business. A copy of each was then mailed to Defendant on August 26, 2011. The affidavit was notarized August 25, 2011.

In its opposition, Plaintiff stated, under oath,

"I went to [Defendant's] home [... and] met with [Defendant] in person at his home in New York,"

"There were approximately three meetings between myself and [Defendant] all of which took place at [Defendant's] then residence located at [...] Mt. Kisco, New York."

Plaintiff's counsel also submitted a notarized affidavit that on August 29, 2011, the firm mailed process to Defendant in a postage paid envelope, marked "personal and confidential" to 100 Camino Del Cerezo, Santa Fe, New Mexico.

In the New Mexico pleadings, Defendant states,

"[He] has a home at 100 Camino Del Cerezo, Santa Fe, New Mexico."

According to the New Mexico public records, the corporation, Hacienda Del Cerezo, LTD., has its principal address as 100 Camino Del Cerezo, Santa Fe, New Mexico. Its agent for service is Stephen Kirschenbaum, at 100 Camino Del Cerezo, Santa Fe, New Mexico. In a travel article, Is Hacienda Del Cerezo Right For You?, Defendant is described as the owner of the 336 acre ranch. See, www.haciendadelcerezo.com, www.about.com and www.manta.com.

This Court renders its decision on the motion to dismiss.

Defendant's entire motion was based on what he perceived to be technical defects in service of process. The Defendant must expect this Court to exact the same stringent requirements of Defendant's papers.

NY Civ. Pract. Laws & Rules (CPLR) §2214 states that a notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. [emphasis added]. An affidavit is a sworn statement. See, New York Practice, 5th ed., David D. Siegel, §205. At the end is the person's signature, subscribed and sworn to before a person authorized to administer oaths, such as a notary public. Id. An exception is CPLR §2106 which provides that the statement of an attorney admitted to practice in the courts of the state who is not a party to the action when subscribed and affirmed by him to be true under penalties of perjury may be served or filed in the action in lieu of and with the same force and effect as an affidavit. [emphasis added]

Defendant may have been at one time an attorney in New York State. Currently, his registration is marked as delinquent. Nevertheless, it is undisputed that Defendant is a party to the action. Therefore, Defendant is prohibited from affirming his own pleadings under penalty of perjury. Absent his ability to affirm his documents, Defendant is required in this New York action to support his motion with affidavits. This is not a New Mexico proceeding. This Court is not bound by the requirements which those Courts may require in its proceedings. Even while the New Mexico Courts might accept Defendant's unverified statements, this Court does not. The same applies to the document of his witness, Mr. Bennett.

Accordingly, absent supporting affidavits, Defendant's motion is fatally defective.

Notwithstanding this Court's determination that the Defendant's motion was defective, the Court continued to analyze on the merits the service of process in this case.

A constitutionally proper method of effecting substituted service need not guarantee that in all cases defendant will in fact receive actual notice. Bossuk v Steinberg, 58 NY2d 916, 460 NYS2d 509 [1983]; Dobkin v Chapman, 21 NY2d 490, 502, 289 N.Y.S.2d 161 [1968]. It suffices that the prescribed method is one reasonably calculated, under all circumstances, to apprise [the] interested party of pendency of action." Bossuk v Steinberg, supra; citing Mulane v Central Hanover Trust Co, 339 US 306, 314, 70 S.Ct. 652, 657, 94 Led 865 [1950]. The fact that a defendant's employee may not agree or may refuse to accept service when the server attempted to leave it with him was irrelevant, as the requirement for delivery to a person of suitable age and discretion at the place of business may be met by leaving the summons in the general vicinity of a person who resists service. Miske v Maher, 156 AD2d 986, 549 N.Y.S.2d 279 (4th Dep't 1989), appeal denied, 75 NY2d 708, 555 N.Y.S.2d 691. The New York methods of service provide for such calculation. The Court of Appeals has held that even if the person resists service and remains behind a closed door, that service is sufficient by leaving the pleading at the foot of the door. Bossuk v Steinberg, supra.

CPLR Article 3 sets forth the methods of service upon a natural person. In common parlance, they are [*5]

1) Personal delivery (CPLR §308(1)),

2) Substituted service (CPLR §308(2)), and

3) "Nail and mail" service (CPLR §208(4)).

Contrary to Defendant's argument that Plaintiff should have used "nail and mail," such service may only be used where personal delivery and substituted service cannot be made with due diligence. CPLR §308(4). In the instant motion, the Court must examine the provisions for substituted service (CPLR §308(2)) in light of the facts and circumstances.

CPLR §308 (2) is as follows:

"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 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 in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other."

CPLR §313 provides that a person [...] subject to the jurisdiction of the courts of the state under section 301 or 302 [...] may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state.

Defendant's statements, or lack thereof, convinced this Court that proper service of the summons and complaint was effected. First, while CPLR §308(3) refers to agents, CPLR §308(2) clearly does not. The only requirement is that the person is "of suitable age and discretion" which the Courts have defined as fact specific. Defendant did not in any of his papers allege that Bennett was not of suitable age and discretion. It was undisputed that Bennett was about 35 years of age. By his own words, Bennett knew that a "young man" entered the property and asked Bennett to take him to, or contact, Bennett's boss, i.e. the Defendant. Bennett refused. Next, Bennett "backed away" from the young man when he tried giving Bennett the papers; the young man then left the papers on the vacuum which Bennett was using. As stated in Miske v Maher, supra, service has been met despite the employee's refusal to take the papers in hand.

The next of Defendant's baseless arguments was that the envelope mailed to him did not bear the legend "personal and confidential." Courts have held that failure to include such a legend on a mailing to a defendant's place of business is a jurisdictional defect. In this case, it is undisputed that 100 Camino Del Cerezo is Defendant's place of residence. In addition to filing a reply in this motion wherein Defendant stated, "I have a residence at 100 Camino Del Cerezo," Defendant also stated to the New Mexico courts that he "has a home at 100 Camino Del Cerezo." Lacking in his papers was any mention that his residence was not 100 Camino Del Cerezo. Because mailing of the summons to the Defendant's residence did not require the "personal and confidential" legend, its absence from the envelope herein was not a defect. The Court need not attend to the issue of the return address; it notes that the return address was "Que Pasa" and did not indicate on the outside that the communication was from an attorney or concerned an action against the Defendant. CPLR §308(2). It is immaterial if the return address was that of the process server. [*6]

Lastly, in addition to the Defendant failing to dispute that the papers were delivered to the property on August 6, 2011, his witness, Bennett, admitted they were. Defendant submitted a copy of the envelope he received bearing the postmark "August 26, 2011" and, similarly, failed to dispute its authenticity.

Clearly, the mailing and delivery were effected within 20 days of each other as required by statute.

Defendant raised three additional arguments not addressed above. They were that:

1) the amount demanded in the summons did not match the amount demanded in the complaint,

2) this Court lacks subject matter jurisdiction because Defendant has no contacts with New York, and

3) the affidavit of service was fatally defective.

Regarding the proof of service, had the Defendant not admitted to the delivery of the papers and receipt of the envelope his argument could have merit. Had he challenged the process server's veracity about service, perhaps the error could be significant. But, in light of the facts and circumstances, and Defendant's failure to challenge the delivery on August 6 and mailing on August 26, 2011, there is no reason to question the truth of the process server's affidavit. The purpose of the notary is not to ensure the notary properly dates the oath, it is the fact that the oath was taken. The Court therefore accepts the affidavit of service.

Regarding the inconsistency of the monetary demand between the summons and complaint, this Court in a separate motion granted Plaintiff's application to amend the summons and complaint.

Defendant argument regarding subject matter jurisdiction also fails. This Court has jurisdiction over matters involving demands for money due; Defendant failed to show otherwise. The Court notes that Defendant was a New York resident at the time he transacted this business and entered into the contract with Plaintiff. Imagine the disaster to our system of justice if a party residing in any state entered into a contract in that state then moved just to avoid the Court's jurisdiction. As an attorney, Defendant should have understood. As an attorney moving to another state Defendant should have modified his agreement to the extent that any dispute would be brought in a New Mexico court. Not having done so, this Court finds that it has subject matter jurisdiction of this action, and that the Defendant has sufficient contact with the State of New York. Invoking the falsus in uno, falsus in omnibus, doctrine,this Court finds that there was little to be believed from the Defendant. Interesting that the word "cerezo" in both the bed & breakfast, and the street name, means "cherry tree;" where George Washington could not tell a lie, Defendant, both as a litigant and as an attorney, demonstrated a propensity to be less than truthful and disingenuous with this Court.

Based upon the foregoing, it is hereby [*7]

ADJUDGED, that delivery of the summons and complaint on a person of suitable age and discretion was effected at Defendant's place of business on August 6, 2012; and it is further

ADJUDGED, that mailing of the summons and complaint was effected by first class mail, postage paid, to Defendant's residence; and it is further

ADJUDGED, that the mailing and delivery were effected within the statutory requirement of twenty (20) days, and was thereby proper service; and it is further

ADJUDGED, that based upon the foregoing decision, the affixing of August 25, 2011 upon the affidavit if service was a scrivener's error by the notary and that the facts disclosed by the Defendant supported the veracity of the oath given to the process server in the affidavit; and it is further

ADJUDGED, that this Court has subject matter jurisdiction over this action, and that Defendant has sufficient contacts with this State for the action to proceed; and it is further

ORDERED, that this motion is denied in its entirety; and it is further

ORDERED, that the Traverse Hearing scheduled for August 30, 2012, is hereby cancelled; and it is hereby

ORDERED, that Defendant is directed to serve a verified answer no later than 20 days following the date of this decision which is being provided to Defendant's counsel on this date; and it is further

ORDERED, that all parties are directed to appear before this Court on SEPTEMBER 13. 2012, at 9:30AM , to enter into a discovery schedule Order; and it is further

ORDERED, that Plaintiff's counsel shall immediately provide the New Mexico Court with a copy of this Decision and Order.

This constitutes the Order of this Court.

JCC