Upon the credible testimony and relevant and material aspects of the documentary evidence submitted to the Court during the traverse hearing held on September 17, 2014, the arguments advanced thereon including the extensive post-hearing submissions allowed by the Court, and after due and deliberate consideration thereon, the Court rules as follows on the principal and dispositive issue under consideration, i.e., whether service upon defendant of the Summons and Verified Complaint in this Matrimonial Action was accompanied by a copy of the Notice of Automatic Orders (DRL 236). The Court answers the question in the affirmative.

This action for divorce was commenced by plaintiff against defendant upon the February 13, 2012 filing with the County Clerk of the County of Putnam, a Summons and Verified Complaint with attached Notice of Automatic Orders, pursuant to 22 NYCRR 202.16-a.

On or before February 24, 2012, Dennis Illuminate (the "Process Server") was requested by the Offices of Berkman & Hudak, P.C., plaintiff's attorney, to serve process upon defendant. Thereupon, the Process Server was given two copies of the Summons and Verified Complaint with attached Notice of Automatic Orders.

The Process Server made arrangements to meet defendant at the Carmel, New York, Post Office to serve him. Defendant was thereupon served with the Summons and Verified Complaint with attached Notice of Automatic Orders on February 24, 2012, at 10:35 a.m. in the parking lot of the Carmel, New York, Post Office located at Fair Street, Carmel, New York.

Thereafter, the Process Server signed and swore in an "Affidavit of Service" that he effected service of the Summons and Verified Complaint on defendant, which Affidavit of Service was thereafter filed in the Putnam County Clerk's Office. No mention is made in the Affidavit of Service of the Notice of Automatic Orders.

Richard C. Ebeling, Esq., an attorney duly admitted to practice law in the State of New York, initially represented defendant in this action (the "Former Attorney"). In connection with his representation of defendant, the Former Attorney received a copy of the Summons and Verified Complaint with attached Notice of Automatic Orders via e-mail sent from defendant's e-mail address. The Former Attorney interposed a Verified Answer on defendant's behalf which does not contain any affirmative defenses, including one for lack of Notice of Automatic Orders.

Without regard to the lack of any affirmative defenses, the Court finds by a preponderance of the evidence that, upon serving [*2]defendant with a copy of the Summons and Verified Complaint on February 24, 2012, the Process Server also served defendant with a copy of the Notice of Automatic Orders pursuant to 22 NYCRR 202.16-a.

While the deficiencies in the Process Server's records (see GBL §89-u) may constitute grounds for enforcement proceedings by the Office of the New York State Attorney General (see GBL §89-v), such did not, ipso facto, disqualify the Process Server from having testified in this hearing, nor do they preclude the Court from evaluating the Process Server's testimony upon full consideration of all of the credible evidence otherwise properly presented to it. This includes, but is not limited to, the testimony of the Former Attorney about having received a copy of the Summons and Verified Complaint with attached Notice of Automatic Orders by way of an e-mail from defendant's e-mail account.

This case is readily distinguishable from First Commercial Bank of Memphis, N.A. v. Ndiaye (189 Misc 2d 523, 526 [Sup Ct 2001]), upon which defendant relies. We are not here concerned about "sewer service" which occurs "when a process server discards court papers and claims they were duly served, recording a fictitious date and time of service in the log and in the court affidavits of service (First Commercial Bank of Memphis, N.A. v. Ndiaye, 189 Misc 2d 523, 525 [Sup Ct 2001] citing Mem of Senator Martin J. Knorr, Process Serving Abuse "Sewer Service," 1986 NY Legis Ann, at 180; Mem of NYS Dept of Law, July 15, 1986). Nor are we dealing with a New York City licensed process server who is subject to an array of additional laws, rules and regulations (see General Business Law, Article 8-A, "Process Servers and Process Serving Agencies in Cities Having a Population of One Million or More" and section 2-233 of the Department of Consumer Affairs Regulations of the City of New York [6 RCNY] governing licensed process servers]; compare General Business Law, Article 8). Additionally, we are not reviewing the propriety of an administrative penalty (see CPLR 7803[3]) imposed upon a New York City process server for having maintained "inaccurate and evidently false records" in violation of the record keeping provisions and other requirements imposed upon a New York City process server (see Barr v. Dept. of Consumer Affairs of City of New York, 70 NY2d 821, 823 [1987][penalty of license revocation upheld in face of process server's "illegible, inaccurate and otherwise plainly unreliable" records especially since New York City Department of Consumer Affairs, regulation IV, mandates that "[t]he licensee shall at all times strictly and promptly conform to all laws, rules, regulations and requirements . . . relating to the conduct of licensees and the service of process in the State of New York"). Finally, the evidence upon which the Court was called upon to make a [*3]determination as to service is not merely the testimony of a process server. Among other things, the defendant admitted service of papers and his former attorney testified as to his receipt of papers from defendant which included the Summons and Verified Complaint with attached Notice of Automatic Orders.

The Court has also considered and has rejected defendant's argument that the Former Attorney's testimony regarding receipt from defendant of the Summons and Verified Complaint with attached Notice of Automatic Orders constitutes a breach of the attorney-client privilege (see CPLR 4503[a]).

Among other things, neither the Former Attorney nor defendant prepared the documents about which the attorney admitted receipt and no testimony was elicited from the Former Attorney about any communications, let alone any confidential communications, that may have taken place between the two about the documents, be it how to respond to same or otherwise (see Spectrum Systems Intern. Corp. v. Chemical Bank, 78 NY2d 371, 377 [1991][privilege applies only to communications between the attorney and client and not to the underlying facts]). In any event, defendant's hearing testimony that his "e-mail address actually had been used by other people" defeats his assertion that the subject e-mail communication with the Former Attorney was made in confidence (see Willis v. Willis, 79 AD3d 1029, 1030 [2d Dept 2010]). Finally,

The Court has also considered the fact that the Affidavit of Service only attests to service upon defendant of the Summons and Verified Complaint with no mention of the Automatic Orders of the Court.

While the lack of any reference to the Automatic Orders of the Court may have constituted a sufficient basis upon which to have ordered the traverse hearing and/or upon which to have evaluated [*4]the Process Server's testimony, such does not otherwise preclude a finding by the Court that the Automatic Orders of the Court were indeed served along with the Summons and Verified Complaint (see Navarro v. Singh, 110 AD3d 497, 498 [1st Dept 2013]["mere irregularity" not divesting court of jurisdiction where process server testified at hearing that he effectuated substituted service followed by a mailing even though affidavit of service "incorrectly" indicated that service was effectuated upon "Individual" defendant without any mention of a mailing to defendant]).

Based upon the foregoing and there being no merit to any other arguments raised by defendant, the Court finds that plaintiff has satisfied her burden of establishing, by a preponderance of the credible evidence, personal jurisdiction over defendant by service upon defendant of the Summons, Verified Complaint and Notice of Automatic Orders.

The parties are directed to appear before the Hon. Victor J. Grossman, J.S.C. at 9:30 A.M. on January 20, 2015, for further proceedings.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

December 22, 2014

HON. LEWIS J. LUBELL, J.S.C.