The following papers numbered 1 to 15 were read on this motion by defendants, BUNDO ASSOCIATES INC., VASEL BRYCE, AND CLAUDIUS BRYCE, for an order pursuant to CPLR 5015(a)(4) vacating a money judgment entered on December 20, 2010 by the plaintiff against the defendants on default, on the ground of lack of personal jurisdiction due to improper service of process; and for an order staying the Sheriff of the City of New York from enforcing the judgment including the sale of 189-17 Linden Boulevard, Jamaica, NY:

Papers Numbered

Order to Show Cause-Affidavits-Exhibits..............1 - 7

Affirmation in Opposition-Affidavits-Exhibits........8 - 12

Reply affirmation...................................13 - 15

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In this negligence action, the plaintiff, Shane Jeffers, [*2]seeks to recover damages for personal injuries he allegedly sustained on March 30, 2006 when he fell at the premises owned by defendants Bundo Associates, Inc., Vasel Bryce and Claudius Bryce located at 187-17 Linden Boulevard. Plaintiff, a plumber, alleges that at the time of the accident he was on the premises to fix a plumbing problem when a certain stairway collapsed causing him to fall and sustain serious injuries.

The plaintiff commenced the instant action by filing a summons and complaint on May 17, 2007. The affidavits of service on file with the court indicate that Claudius Bryce and Vasel Bryce were served on May 21, 2007 by serving a person of suitable age and discretion at their residence in Jamaica, Queens. Claudius Bryce and Vasel Bryce were served again on March 20, 2008, by nail and mail service at 187-17 Linden Boulevard Jamaica Queens. On May 7, 2008 a summons and complaint were served on Claudius Bryce individually, and Claudius Bryce as Executor of the Estate of Vasel Bryce, by serving a person of suitable age and discretion at 104-04 195th Street, Hollis, New York. On May 7, 2008 a copy of the summons and complaint was served on Bundo Associates by serving Claudius Bryce.

When the defendants failed to answer the summons and complaint this court granted the plaintiff's motion for a default judgment on the issue of liability and set the matter down for an inquest as to damages. The inquest was held before this Court on April 8, 2009. At that time the court heard the testimony of the plaintiff who stated that on the date of the accident he responded to a plumbing job at a warehouse located at 187-17 Linden Boulevard. He stated that when he went to the location a stairwell collapsed as he was walking down the steps causing him to fall through the stairs. As a result of the fall he injured his lower back sustaining disc herniations at L4-5 and L5-S1. He stated that following the accident he received treatment for his back from certain medical providers including neurologist Dr. Hausknect. Based upon the plaintiff's unopposed testimony this court awarded judgment to the plaintiff in the amount of $250,000. A judgment in the amount of $288,280.82 including interest was entered against all defendants in the office of the Queens County Clerk on December 2, 2010. The plaintiff sought to execute on the judgment by scheduling a sheriff's sale of the real property owned by the defendants which was to have occurred on September 11, 2013. A stay of the sale was obtained by the defendants pursuant to the instant order to show cause.

Defendants now move for an order vacating the default judgment pursuant to CPLR 5015(a)(4) on the grounds of lack of personal jurisdiction. Defendants counsel states that the [*3]description of the person served does not match the description of Claudius Bryce. Further, counsel states that defendant Vasel Bryce died in 1987 and could not have been served with process in this action. In addition, counsel states that there is no affidavit in the file showing that Bundo Associates, a corporation, was properly served pursuant to CPLR 311. In support of the motion Claudius Bryce submits an affidavit dated September 3, 2013 stating that Bundo Associates is the owner of the property where the plaintiff's accident is alleged to have occurred. He states that he is the executor of the estate of Vasel Bryce who was the sole shareholder of Bundo Associates. He also states that he was not served with the summons and complaint and he does not match the description of the person served. Claudius Bryce also contends that the defendants have a meritorious defense in that the plaintiff was not authorized to be on the premises and was never hired by anyone associated with the defendants to perform a plumbing job at the location. Further, defendants argue that they had no notice of an unsafe condition and there is no proof that the stairwell was defective.

In opposition, plaintiff's counsel, states that in order to vacate the default judgment pursuant to CPLR 5015, the defendant must demonstrate a legally sufficient excuse for his default and a meritorious defense to the plaintiff's cause of action. Counsel contends that the affidavits of service are prima facie evidence of proper service and that the defendant's denial of receipt of the summons and complaint is insufficient to raise a question of fact as to the sufficiency of service. Counsel states that the affidavits of service are sufficient on their face with respect to service upon Mr. Bryce as they state that service was made upon a co-tenant of suitable age and discretion at certain property owned by Claudius Bryce.

Upon review and consideration of the defendants' motion, the plaintiff's affirmation in opposition, and the defendants' reply thereto, this court finds as follows;

The money judgment entered against defendant Vasel Bryce in the Office of the Queens County on December 2, 2010 is vacated. There is no dispute that Vasel Bryce died in 1987 prior to the commencement of this action in May 2007. A plaintiff may not bring a legal action against a person already deceased at the time of the commencement of an action, but instead, must proceed against the personal representative of the decedent's estate (see Arbelaez v Chun Kuei Wu, 18 AD3d 583 [2d Dept 2005]; Dime Sav. Bank of New York FSB v Luna, 302 AD2d 558 [2d Dept. 2003]). The death of a named defendant prior to the commencement of an action has been held to render the action, insofar as asserted against [*4]deceased defendant, a legal nullity from its inception which leaves the Court without jurisdiction to grant any requested relief (see Rivera v Bruchim, 103 AD3d 700 [2d Dept. 2013]; Marte v Graber, 58 AD3d 1[1st dept. 2008]). Here, although plaintiff alleges that letters testatmentary were issued to Claudius Bryce on behalf of the Estate of Vasel Bryce, there is no proof in the record that the Estate of Vasel Bryce was ever made a party to the action.

This Court also finds that the Judgment must be vacated as against defendant, Bundo Associates, Inc. The affidavit of service on Bundo Associates indicates that it was served by serving Claudius Bryce. However, proper service upon a corporation pursuant to CPLR 311 must be made by personally delivering the summons to 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. Here, there is no proof in the affidavit that the person served on behalf of the corporation, "Joe Smith" a co-tenant of Claudius Bryce, was a managing or general agent of the defendant corporation or authorized to accept service on behalf of the corporation. Further, there is no proof that the corporation was properly served through service upon the secretary of state as its agent, pursuant to Business Corporation Law § 306(b)(1).

With respect to personal service upon Claudius Bryce, individually, the defendants' submissions are sufficient to create a question of fact requiring an evidentiary hearing.

A process server's affidavit stating proper service in accordance with CPLR 308, constitutes prima facie evidence of proper service (see Bank, Natl. Assn. v Arias, 85 AD3d 1014 [2d Dept. 2011]; Scarano v Scarano, 63 AD3d 716 [2d Dept. 2009]). However, a defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, "generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing"(City of New York v Miller, 72 AD3d 726 [2d Dept. 2010]; also see Wells Fargo Bank, N.A. v Christie, 83 AD3d 824 [2d Dept. 2011]; Associates First Capital Corp. v Wiggins, 75 AD3d 614 [2d Dept. 2010]; Washington Mut. Bank v Holt, 71 AD3d 670[2d Dept. 2010]).

Here, there are three separate affidavits of service showing that Claudius Bryce was served on, May 21, 2007, March 20, 2008, and May 7, 2008, at three separate locations. As there is a question of fact as to which address, if any, was the residence of the defendant at the time service was made, and whether [*5]service was properly made, this matter is set down for a hearing as to whether personal jurisdiction was acquired over said defendant.

Accordingly the parties are directed to appear for a traverse hearing to be held in Room 304 of the Queens County Supreme Court, located at 25-10 Court Square, Long Island City, New York 11101, at 10:00 a.m on December 18, 2013.

Pending the hearing the stay on enforcement of the judgment contained in the order to show cause dated September 10, 2013 remains in full force and effect.

Notify Counsel.

Dated: November 13, 2012

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.