The following papers numbered 1 to 14 were read on this motion by defendants WALTER McSWEENEY and WALTER McSWEENEY as Executor of the Estate of ELLEN LASZCZEWSKI for an order pursuant to CPLR 5015(a)(1)(4), 3211(a)(8), 317, and 3012(d) vacating the judgment of this court dated October 8, 2008 and any and all restraining notices served in connection with the judgment; dismissing the complaint against the defendants for lack of personal jurisdiction; or in the alternative, granting defendants leave to serve an answer to the complaint; and for an order canceling any further enforcement or execution proceedings; and the cross-motion of the plaintiffs for an order pursuant to CPLR 306-b extending plaintiffs' time to effect proper service:

Papers

Numbered



Order to Show Cause -Affidavits-Exhibits-Memo of Law......1 - 6

Affirmation in Opposition and in Support of Cross-Motion..7 - 11

Affirmation in Reply and in Opposition to Cross-Motion...12 - 14

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In this negligence action, the plaintiff, Dennis L. Martinez(female), seeks to recover damages for serious personal injuries she allegedly sustained on June 25, 2006, when an allegedly defective window in a living room of an apartment at the premises located at 611 Onderdonk Avenue, Ridgewood, New York, owned by Walter Mcsweeney and the Estate of Ellen Laszczewski, fell on her hand. Walter McSweeney was the Executor of the Estate of Ellen Laszczewski. The subject window was located in an apartment, which at the time, was occupied by co-defendant Gilberto Rivas. The plaintiff, a home health care aide, was attending to Mr Rivas, a disabled police officer, at the time of the accident. The complaint also asserts a cause of action for loss of services on behalf of Luis Martinez, Dennis's spouse.

Plaintiffs commenced this action by filing a summons and complaint on April 6, 2007. According to the affidavits of process server Robert Ramsay, dated May 4, 2007, Walter McSweeney and Walter McSweeney as Executor of the Estate of Ellen Laszczewski were served on May 1, 2007 pursuant to CPLR 308(2) by serving co-defendant "Gilberto Rivas, Co-Tenant" a person of suitable age and discretion at the building located at 611 Onderdonk Avenue, Ridgewood, New York. A copy of the summons and complaint was also mailed to McSweeney the same day at the same address.

Upon the failure of the defendants to answer the summons and complaint, plaintiffs moved for an order granting a default judgment on liability and setting the matter down for an inquest on damages. The motion was served upon the defendants by regular and certified mail, return receipt requested on October 15, 2007. Defendants did not oppose the motion. By order dated December 14, 2007, this court granted the plaintiffs' motion for a default judgment without opposition. After hearing testimony from the plaintiff, at the inquest held on May 22, 2008, the court awarded plaintiff, Dennis Martinez, judgment in the amount of $250,000 for past pain and suffering and $13,923.51 for loss of income. The Court awarded her husband, plaintiff, Luis Martinez, the sum of $50,000 for loss of services. A judgment in the total amount of $325,853.51 was entered in the Office of the Queens County Clerk on October 8, 2008, and was served on the defendants on October 23, 2008.

Mr. McSweeney states in his affidavit that he first received notice of the action and that the default judgment had been taken against him in April 2013 when he was served with a Sheriff's Notice of Levy and Sale. The total amount now alleged to be due to the plaintiffs after interest, sheriff's fees and poundage is [*2]$425,645.10.

Defendants now move to vacate the default judgment pursuant to CPLR 5015(a)(1)(4) and dismiss the complaint pursuant to 3211(a)(8) on the ground of lack of personal jurisdiction and/or excusable default. In support of the motion, defendant Walter McSweeney submits an affidavit dated June 22, 2013, in which he states that he did not receive a copy of the summons and complaint which was purportedly served upon co-defendant Rivas at the subject premises located on Onderdonk Avenue. He states that on the date of service, he did not reside at the Onderdonk address and the papers were never forwarded to him by co-defendant Rivas. He asserts that at the time of service he resided at 25 Sheldon Avenue, New Rochelle, New York, where he had been living for fifteen years. Defendant alleges, therefore, that because he did not reside at the address where service was purportedly made, service of the summons and complaint was improper and defective (citing Aurora Loan Servs., LLC v Gaines, 104 AD3d 885 [2d Dept.2013][the Supreme Court properly granted that branch of the plaintiff's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(8) on the basis that it had failed to obtain personal jurisdiction over defendant]; Ja Kim v Dong Hee Han, 37 AD3d 662 [2d Dept.2007][the purported service of process under CPLR 308(4) was defective and personal jurisdiction was not acquired over the defendant since the plaintiffs attempted to serve the defendant at an address that was never the defendant's dwelling place or usual place of abode]). As a result, defendant alleges that the Court lacked personal jurisdiction over him when the summons and complaint were served and when the default judgment was entered. Defendant alleges that where service of process has been improperly effected any resulting default judgment is a nullity (citing Demartino v Rivera, 148 AD2d 568 [2d Dept 1989] and Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074 [2d Dept. 2010][since personal jurisdiction over the defendant was never acquired, the default judgment entered against her was a nullity]).

Defendant also contends that co-defendant Rivas, the individual who was occupying the apartment at Onderdonk Avenue where the accident occurred, was not a person of suitable age and discretion because he is a co-defendant in the action and his claims are adverse to those of McSweeney (citing New Hampshire Ins. Co. v Ali, 2010 NY Misc. LEXIS 4061][Sup. Ct. NY Co. 2010]; Bakht v Akhtar, 18 Misc 3d 78 [App. Term 2d Dept. 2007]).

In addition, defendant asserts that if the court finds there was personal jurisdiction than the judgment should be vacated on the ground of excusable default. In that regard, defendant [*3]alleges that in addition to not receiving notice of the proceedings, he has a meritorious defense in that he did not have actual or constructive notice of a defective window at the premises (citing Lui v City of New York, 287 AD2d 378 [1st Dept. 2001][the order striking defendant's default was properly vacated upon a showing of a meritorious defense, namely, lack of notice of the alleged dangerous condition].

Defendant also moves for leave to serve a late answer pursuant to CPLR 3012(d) based upon his reasonable excuse for the default and based upon the public policy favoring resolution of cases on the merits and the fact that the plaintiffs will not be prejudiced as the plaintiffs themselves waited until April 2013 to execute on the judgment.

Defendant also submits documents showing that on September 4, 2007, prior to the service of plaintiffs' motion for the default judgment, the subject building was sold to Luis Abel Barros and his wife Sara Martina Barros. Therefore, he claims that he could not oppose the motion for a default judgment and did not respond to the notices of inquest sent by counsel because that motion and the notices of inquest were mailed to the building where he did not reside and in which he no longer had an ownership interest.

Plaintiffs oppose the motion to dismiss the complaint and to vacate the default judgment and request by cross-motion that if the court does find that service was not properly effectuated upon the defendant, the court grant an order pursuant to CPLR 306-b extending the plaintiffs' time to effect proper service.

Brian Isaac, Esq., counsel for the plaintiff submits an affirmation in opposition to the motion stating that although Mr. McSweeney claims he resided at 25 Sheldon Avenue, New Rochelle NY at the time of service, plaintiffs obtained public filings which indicate that he listed 611 Onderdonk Avenue as his residence on several documents. Richard Nunez, Esq., plaintiff's counsel at the time the action was commenced submits an affirmation stating that an investigation revealed that Ellen Laszczewski owned the premises and Mr. McSweeney took title to the premises after she died and he resided there. Counsel states that Mr. McSweeney listed the property as his residence in the deed and mortgage he executed in connection with the sale of the property in September 2007. Several other documents, including a petition to probate the will of Ellen Laszczewski, indicate that McSweeney listed his address as 611 Onderdonk Avenue.

In addition, the plaintiffs submit an affidavit from an [*4]investigator, Damian Cutugno, which states that Mr. McSweeney maintained an apartment at the premises until it was sold the building to Mr. and Mrs. Barros. In 2007 the investigator saw a mailbox which he states was labeled with the name of W. McSweeney. Mr. Cutugno also states that he located Mr. Rivas on August 2, 2013, at which time Rivas told him that he recalls receiving a summons and complaint for McSweeney. Rivas purportedly told his sister to tape it to the apartment door of McSweeney. Rivas stated to Cutugno he later saw McSweeney with a copy of the summons and complaint. However, Mr. Rivas declined to provide an affidavit to that effect. Plaintiffs contend that as they have proof that the defendant referred to 611 Onderdonk as his residence in certain documents, that service of the summons and complaint on Mr. Rivas as a co-tenant and person of suitable age and discretion at the Onderdonk Avenue address was proper.

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, this court finds that Mr. McSweeney's affidavit stating that he never received a copy of the summons and complaint because his residence was in New Rochelle at the time that service was made would ordinarily be sufficient to rebut the presumption of proper service and trigger the need for a traverse hearing. However, this Court finds that a hearing is not necessary because notwithstanding whether the Onderdonk address was Mr. McSweeney's actual dwelling place or usual place of abode, Mr. Rivas, a co-defendant in the action was not a person of suitable age and discretion to accept service on behalf of Mr. McSweeney because

his interests are adverse to those of his landlord, Mr. McSweeney.

Pursuant to CPLR 308, personal service may be effected upon someone other than the named party, if the recipient is "a person of suitable age and discretion." In this respect, the courts have [*5]held that "the person to whom delivery is made must objectively be of sufficient maturity, understanding and responsibility under the circumstances so as to be reasonably likely to convey the summons to the defendant" (New York v Chemical Bank, 122 Misc 2d 104[Sup. Ct. NY Co. 1983]). A person is generally considered of suitable age and discretion if "the nature of his/her relationship to the person to be served makes it more likely than not that they will deliver process to the named party." (Bakht v Akhtar, 18 Misc 3d 78 [App Term, 2d Dept. 2007]). Thus, where the interests of one defendant are adverse to those of the co-defendant upon whom service was made, such defendant would be inappropriate to act as the recipient of service for him as he would not be a person who would be reasonably likely to convey notice to the co-defendant (See Weidemann v Keith, 127 AD2d 831 [2d Dept. 1987]; Community School Dist. v Goodman, 127 AD2d 837 [2d Dept. 1987]).

Here, Rivas as the tenant in whose apartment the plaintiff was allegedly injured, has interests which are conflicting to those of the landlord such as, whose responsibility it was to repair the window, whether the landlord had actual or constructive notice of a defective condition and whether the tenant conveyed notice of a defective condition to the landlord. Further, as there may be apportionment of liability between the two defendants and as Revis's interests are clearly adverse to the landlord, McSweeney, the service of the summons and complaint upon co-defendant Revis pursuant to CPLR 308(2) was defective and invalid as a matter of law (see Windsor Park Nursing Home, Inc. v Grimaldi, 31 Misc 3d 1243 [Sup. Ct. Queens Co. 2011]; New Hampshire Ins. Co. v Ali, 2010 NY Slip Op 32267(U)[Sup. Ct. NY Co. 2010]; Home Props., L.P. v. Kalter, 24 Misc 3d 391 [Dist. Ct. Nassau Co. 2009]). Therefore, as the Court did not acquire personal jurisdiction over the defendant, the default judgment entered against him was a nullity (see Prudence v Wright, 94 AD3d 1073 [2d Dept. 2012]).

Accordingly, as service was not proper when made upon co-defendant Revis, and as this court did not have personal jurisdiction over the defendant, it is hereby,

ORDERED, that the defendants' motion for an order pursuant to CPLR 5015(a)(4) vacating the judgment dated October 8, 2008, entered on default is granted, and it is further,

ORDERED, that any and all restraining orders including the Sheriff's Notice of Levy and Sale dated April 29, 2013 are vacated, and it is further, [*6]

ORDERED, that the plaintiffs' complaint is dismissed pursuant to CPLR 3211(a)(8), and it is further,

ORDERED, that as the plaintiffs have a potentially meritorious cause of action and as the defendants have not demonstrated prejudice by the delay, pursuant to CPLR 306-b plaintiffs' cross-motion is granted and plaintiffs are granted leave to re-serve the summons and complaint within 60 days of service of a copy of this order with notice of entry thereof (see Selmani v City of New York, 100 AD3d 861 [2d Dept. 2012]; Prudence v Wright, 94 AD3d 1073 [2d Dept. 2012]; Owens v Chhabra, 72 AD3d 664 [2d Dept. 2010]; Samet v Binson, 67 AD3d 988 [2d Dept. 2009]; Dujany v Gould, 63 AD3d 1496 [3rd Dept. 2009]; Cooper v New York City Bd. of Educ., 55 AD3d 526 [2d Dept. 2008]; Rosenzweig v 600 N. St., LLC, 35 AD3d 705[2d Dept. 2006]; Chiaro v D'Angelo, 7 AD3d 746[2d Dept. 2004]).

Dated: November 19, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.