The following papers numbered 1 to 23 read on this motion for an order dismissing the plaintiff's complaint for plaintiffs' failure to properly serve the defendant M. Apipattanamontree, pursuant to inter alia CPLR §308(1), (2) and/or (4), and CPLR §306.b, thus depriving the Court of personal jurisdiction over this defendant as alleged "Nail and Mail" service pursuant to CPLR §308(4) was made to the wrong address in the wrong State, and in addition, the alleged service pursuant to Vehicle & Traffic Law sec. 253/254 was made to the wrong address in the wrong State; alleged service was not made within 120 days of filing of plaintiff's Summons and Complaint pursuant to CPLR §306.b.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Notice of Cross-Motion........................................................5 - 9

Reply Affirmation................................................................10 - 12

Supplemental Affirmation in Opposition...........................13 -15

Further Supplemental Reply Affirmation...........................16 - 17

Supplemental Affirmation in Support..................................18 - 20

Supplemental Reply to Plaintiff's Supplemental Affirmation...21 - 23

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows: [*2]

Defendant, M. Apipattanamontree ("defendant") moves for an order pursuant to CPLR §3211(a)(8), CPLR §§§308(1),(2) and/or (4) and CPLR §306.b to dismiss the within action for lack of personal jurisdiction over the defendant.

Plaintiff cross-moves for an Order pursuant to CPLR §3212 granting plaintiff summary judgment against the defendant on the issue of liability.

The court notes that while the matter was submitted on December 10, 2012 the parties were ordered to appear for a conference before this court on January 23, 2013 wherein the plaintiff was given time to serve reply on or before February 6, 2013.

Plaintiff, Nilda Monroy ("Monroy" or "plaintiff") brought the within action for personal injuries allegedly sustained due to a motor vehicle accident.

Monroy contends that she was driving eastbound on the Long Island Expressway in "stop and go" traffic when, as she began to slow down, she was struck in the rear by the vehicle owned and operated by the defendant.

Plaintiff commenced the within action by filing the summons and complaint on June 26, 2013. Plaintiff allegedly served the summons and complaint on the defendant on August 10, 2012 via "nail and mail" service pursuant to CPLR §308(4). Service was attempted at 244 Jennings Ave, PH, Patchogue, NY 11772 ("Jennings Residence").

Plaintiff also alleges to have made service upon the defendant on July 26, 2012 via the Secretary of State pursuant to Vehicle and Traffic Law § §253 and 254.

Defendant served a timely answer on September 10, 2012

Defendant contends that the "nail and mail" service was made to the wrong address, in the wrong state. In addition, defendant contends that the alleged service in accordance with VTL 253 and 254 was also made to the wrong address and in the wrong state.

Defendant contends that he presently lives at 10555 W. Jewell Avenue, Apt. 1-302, Lakewood, Colorado, 80232. Furthermore, his current Colorado Driver's license number 10-243-0969, indicating that defendant's address as 2063 S. Columbine St. Denver, Colorado, 80210, was issued on June 10, 2011.

However, the court notes that the address provided to the police officer at the scene of the accident was the Jennings Residence as listed on the Vehicle Registration however, defendant's drivers license, also provided, listed an address in San Francisco.

Defendant submits the affidavit of his mother who states that at the time of service the defendant did not reside at the Jennings Residence and that the summons was not affixed to the door.

Defendant's motion to dismiss for lack of personal jurisdiction is denied and plaintiff's motion for summary judgment on the issue of liability is granted as more fully set forth below.

A "plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process' (citation omitted)." (Munoz v. Reyes, 40 AD3d 1059 [2nd Dept. 2007].) As a general proposition, a "process server's sworn affidavit of service ordinarily constitutes prima facie evidence of proper service pursuant to CPLR 308(2)." (Bankers Trust Co. of California, N.A. v. Tsoukas, 303 AD2d 343, 344 [2nd Dept. 2003] see, Lattingtown Harbor Property Owners Ass'n, Inc. v. Agostino, 34 AD3d 536 [2nd Dept. 2006].) However, "a defendant may rebut that affidavit with a detailed and specific contradiction [*3]of the allegations in the process server's affidavit' sufficient to create a question of fact warranting a hearing." (SFR Funding, Inc. v. Studio Fifty Corp, 36 AD3d 604 [2nd Dept. 2005]; U.S. Bank Nat. Ass'n v. Vanvliet, 24 AD3d 906, 908 [3rd Dept.2005]; see, also, Rosario v. Beverly Road Realty Co., 38 AD3d 875 [2nd Dept. 2007].)

Service of process may be made "by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode" only where the alternate methods of personal service provided for in CPLR §§308(1) or (2) "cannot be made with due diligence." (Serraro v. Staropoli, 94 AD3d 1083, 1084 [2nd Dept 2012]; Estate of Waterman v. Jones, 46 AD3d 63 [2nd Dept 2007].) "The requirement of due diligence must be strictly observed because "there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR §308(4)." (Id.)"For the purpose of satisfying the due diligence' requirement of CPLR §308(4), it must be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment." (Id. at 1085.)

The process server attempted service on July 9, 2012 at 8:35PM and again on July 11, 2012 at 4:55PM. The process server attempted service on August 12, 2012 at 7:49AM, but was unsuccessful, so he affixed a copy of the summons and complaint to the door of the Jennings Residence. Further, that the process server attempted corroborated the Jennings Residence with the Patchogue Post Office, which confirmed that Jennings Residence was "Good as Addressed." (See Exhibit 6 of Plaintiff's Notice of Cross Motion.)

"However, due diligence' may be satisfied with a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times." (Estate of Waterman v. Jones, 46 AD3d 63, 66 [2nd Dept 2007] quoting Lemberger v. Khan, 18 AD3d 447 [2nd Dept 2005].) Plaintiff attempted service on a Monday, Wednesday and finally on Sunday August 12, 2012. Accordingly, the process server's affidavit constituted prima facie evidence of proper service pursuant to CPLR §308 (4) . (Wells Fargo Bank, N.A. v. Cherot, 102 AD3d 768 [2nd Dept 2013]; State v. Mappa, 78 AD3d 926 [2nd Dept 2010].)

"Where a defendant submits a sworn denial of receipt of process containing specific facts to rebut the statements in the process server's affidavit, the presumption of proper service is rebutted and an evidentiary hearing is required." (Gray v. Giannikios, 90 AD3d 836, 837 [2nd Dept 2011].)

However, defendant failed to submit an affidavit in support of the within motion to dismiss, instead defendant submitted the affidavit of defendant's mother.^[FN1] The affidavit of the nonparty is insufficient to raise a triable issue of fact. (Simonds v Grobman, 277 AD2d 369 [2nd Dept 2000]; Olesniewicz v Khan, 8 AD3d 354 [2nd Dept 2004].)

Defendant submitted an affidavit in the supplemental affirmation in support. Defendant stated that the Jennings Residence was not his "usual place of abode" on August 10, 2012. However, plaintiff submits, in its supplemental affirmation in opposition. a notarized Affidavit of No Excess Coverage wherein the defendant, on October 17, 2012 states that he "reside[s] at 244 Jennings Ave., Patchogue, NY 11772." On November 27, 2012, defense counsel certified the above statement [*4]pursuant to 22 NYCRR130-1.1-a. Accordingly, plaintiff's conflicting statements with respect to where he resided are insufficient to set the matter down for a hearing. (European American Bank v. Harper, 163 AD2d 458 [2nd Dept 1990][holding that a hearing as to service was not necessary as defendant submitted conflicting statements].) Furthermore, defendant's claims of law office failure are without merit.

Accordingly, defendant's motion to dismiss is denied.

It is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978].) As such, the function of the court on the instant motion is issue finding and not issue determination. (See S.J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974].) The party moving for summary judgment must tender admissible evidentiary proof that eliminates any material issues of fact from the case. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].) If the movant succeeds, the burden shifts to the party opposing the motion, who must show issues of material facts sufficient to require a trial. (Id.)

"A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision." (Xian Hong Pan v. Buglione, 955 N.Y.S.2d 375, 377 [2nd Dept 2012]; Kastritsios v. Marcello, 84 AD3d 1174, 1174 [2nd Dept. 2011]; Plummer v. Nourddine, 82 AD3d 1069, 1069 [2nd Dept. 2011]; Ortiz v. Hub Truck Rental Corp., 82 AD3d 725, 726 [2nd Dept. 2011].) "A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle." (Scheker v. Brown, 85 AD3d 1007 [2nd Dept 2012].) If the driver of the offending vehicle cannot provide a non-negligent excuse to rebut the inference of negligence, then the driver of the lead vehicle may be awarded summary judgment on the issue of liability. (Staton v. Ilic, 69 AD3d 606 [2nd Dept. 2010]; and see Lundy v. Llatin, 51 AD3d 877 [2nd Dept. 2008]; Leal v. Wolff, 224 AD2d 392 [2nd Dept. 1996].) Any conclusory allegations brought up by the defendant do not raise a triable issue of fact and are insufficient to rebut the inference of negligence against him. (Benyarko v. Avis Rent A Car Sys. Inc., 162 AD2d 572, 573 [2nd Dept. 1990]; Young v. City of New York, 113 AD2d 833, 833-34 [2nd Dept. 1985]; see also O'Callaghan v. Flitter, 112 AD2d 1030 [2nd Dept. 1985].) If there is any conflict at all in the evidence then the plaintiff will not be entitled to summary judgment. (See Young v. City of New York, 113 AD2d 833 [2nd Dept. 1985]; Andre v. Pomeroy, 35 NY2d 361, 365 [1974].)

Here, the plaintiff properly met her prima facie burden through the submission of the affidavit of Monroy that he was slowing down in traffic and was hit in the rear by the defendant's vehicle. It is well established, that summary judgment should be granted in a rear-end collision to a car that was lawfully stopped or stopping. (See Xian Hong Pan v. Buglione, 955 N.Y.S.2d 375, 377 [2nd Dept 2012]; Kastritsios v. Marcello, 84 AD3d 1174 [2nd Dept. 2011]; Plummer v. Nourddine, 82 AD3d 1069, 1070 [2nd Dept. 2011].) Monroy presented sufficient evidence, in the form of her affidavit, to meet her prima facie burden by showing that her vehicle was lawfully stopping prior to the collision. (See Viggiano v. Camara, 250 AD2d 836, 837 [2nd Dept. 1998]; Cofrancesco v. Murino, 225 AD2d 648 [2nd Dept. 1996].)

In opposition, defendant fails to provide an affidavit setting forth a non-negligent excuse to [*5]rebut the inference of negligence. (Lampkin v. Chan, 68 AD3d 727 [2nd Dept 2009].)

For the reasons set forth above, defendant's motion to dismiss is denied and plaintiff's motion for summary judgment, solely on the issue of liability is granted and the matter is set down for a trial on damages only.

Dated: April 23 , 2013

___________________________

Bernice D. Siegal, J. S. C.