This action arises from alleged illicit transfers of funds. Plaintiff, Mark Tsukerman, raises claims for conversion, fraud, and breach of fiduciary duty against defendants (and twin brothers), Adam S. Kaplan and Daniel Kaplan.

Plaintiff moves for default judgment against defendants. Defendants cross-move to dismiss for lack of personal jurisdiction due to (assertedly) improper service. In the alternative, Defendants cross-move to stay the action in light of a pending criminal action against the defendants; to compel defendants to arbitrate; and to remove the action to the New York City Civil Court.

Plaintiff's motion is denied. The branch of defendants' cross-motion seeking dismissal is granted. The branches of defendants' cross-motion seeking to stay, to compel arbitration, and to remove the action to Civil Court are denied as academic.

The threshold issue in this action is whether plaintiff validly served defendants. This issue is presented both by plaintiff's default-judgment motion, which entails a showing of valid [*2]service (see CPLR 3215 [f]), and by the branch of defendants' cross-motion seeking dismissal for lack of personal jurisdiction due to improper service.^[FN1]

Plaintiff's affidavits of service indicate that in July 2023, plaintiff's process server served defendants under CPLR 308 (2) at an apartment building located on East 70th Street in Manhattan by leaving the summons and complaint with the building's concierge.^[FN2] (See NYSCEF Nos. 8, 9 [affidavits of service].)

Defendants argue that they do not reside at the East 70th Street address. In support of this contention, defendants provide an affidavit from their mother, Dr. Idida Kaplan. Dr. Kaplan represents that she resides at that address, part time, and that defendants have resided in Florida since 2009. (NYSCEF No. 22 at 1 [affidavit].) Defendants also provide the affidavit of the building's head concierge, Hector Moreno, Jr. Both Moreno and Dr. Kaplan represent that Dr. Kaplan asked Moreno to review the building records to see if a process server left documents for the defendants or at Dr. Kaplan's apartment. (NYSCEF No. 25 at ¶ 4; NYSCEF No. 22 at ¶¶ 7-8.) According to Moreno, the building "keeps permanent records of all activity, including of all visitors to the Building, of all packages, and of all incoming and outgoing envelopes." (NYSCEF No. 25 at ¶ 3 [affidavit].) Moreno represents that the building records showed no activity concerning defendants or the apartment or that any process server visited. He also represents that the building has no concierge that fits the description of the person described in plaintiff's affidavits of service. (Id. at 9.) Moreno further represents that defendants live in Florida.

Plaintiff claims that he previously attempted to serve defendants at a Florida address and at a Great Neck address. (See NYSCEF No. 40 at 4-7 [affidavits of attempted service in Florida].) After unsuccessful attempts, plaintiff moved, before this court, for an extension of time to serve defendants (motion sequence 001). (NYSCEF No. 2 [notice of motion].) In a written order dated November 2, 2023, this court granted the motion. (NYSCEF No. 7.) Plaintiff then learned that in a civil-enforcement action brought in the U.S. District Court for the Eastern District of New York, the SEC served defendants at the East 70th Street address in April 2023. [*3](U.S. Securities and Exchange Commission v Kaplan, Index No. 2:23-cv-01648). (NYSCEF Nos. 40 at 9-10; 39 at 5-6.) That fact led plaintiff to effect service on defendants at the East 70th Street address as well. Plaintiff also argues that in a related federal prosecution (United States v Kaplan, Index No. 2:23-CR-00293), the U.S. District Court for the Eastern District of New York ordered on July 25, 2023, that defendants remain in New York City or Long Island as a condition of their release on bond, and thus that they could not have resided in Florida since 2009. (See NYSCEF No. 39 at 7 [mem. of law]; NYSCEF No. 40 at 15 [release order].) And plaintiff points to evidence that letters addressed to defendants came to the Manhattan premises in June 2024. (NYSCEF No. 29 at 22-23.)

None of this information, though, necessarily supports a conclusion that the East 70th Street address was defendants' residence or usual place of abode in July 2023. Plaintiff's strongest piece of evidence is the service in the SEC's federal action. But even that is thin. The affidavits of service in the federal action state that "[u]pon information and belief," the East 70th Street address was the usual place of abode of defendants. (See NYSCEF No. 40 at 9, 10.) The information underlying that belief does not appear in the record. And defendants waived service in that action three days after the filing of the affidavits of service. (See id. at 12, 13.) At most, this evidence might show that the SEC had a basis to believe in April 2023 that defendants lived at the East 70th Street address. Plaintiff has not provided the facts underlying the belief, has not shown that the SEC's belief about defendants' residence was correct, and does not give reasons to think that defendants were living at the service address three months later, in July 2023.

Similarly, the district court release order on which plaintiff relies does not say that defendants were already living in New York City or Long Island at the time of the order and must "remain" there, as plaintiff would have it. (See NYSCEF No. 39 at 7). Instead, the order says only that one of defendants' release conditions was that they are not allowed to leave New York City, Long Island, the Eastern District of New York, or the Southern District of New York. (NYSCEF No. 40 at 15.) That condition does not shed light on where defendants were living at the time of their arrest.

The court concludes, therefore, that defendants have provided evidence that any CPLR 308 (2) service on them at the East 70th Street address was invalid; and that in opposition, plaintiff has not provided evidence that might create a material dispute of fact warranting a traverse hearing. The branch of defendants' cross-motion seeking dismissal is granted. Plaintiff's motion for default judgment is denied. The remaining branches of defendants' cross-motion are denied as academic.

Accordingly, it is

ORDERED that plaintiff's motion for default judgment is denied; and it is further

ORDERED that the branch of defendants' cross-motion seeking dismissal of the complaint is granted, and the complaint is dismissed, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the branch of defendants' cross-motion to stay the action is denied as academic; and it is further

ORDERED that the branch of defendants' cross-motion to compel arbitration is denied as academic; and it is further

ORDERED that the branch of defendants' motion to remove the action to Civil Court is denied as academic; and it is further

ORDERED that defendants serve a copy of this order with notice of its entry on plaintiff [*4]and on the office of the County Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nyco urts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly.