Recitation being made in accordance with CPLR 2219 (a), the following papers were read and considered on the New York State Courts Electronic Filing System ("NYSCEF") in connection with the motion made by Defendant ISAAC G. JEGANATHAN, TRUSTEE OF THE JEGANATHAN FAMILY IRREVOCABLE TRUST seeking the following branches of relief: (i) to disqualify John G. Molloy, Esq., and his law firm John Gifford Molloy P.C., as counsel for Plaintiff Michelle T. Molloy on the ground that her attorney is a necessary witness in this case; and (ii) to dismiss the complaint as against Defendant Jeganathan for lack of personal [*2]jurisdiction based on defective service effectuated upon him:

Upon review of the aforesaid papers,^[FN1] the Court finds, holds, and determines as follows:

The Court assumes that the parties are familiar with the underlying facts and the procedural history of this case and therefore addresses the facts only as necessary to decide this present motion.

The pertinent facts of this action are more fully detailed in length in this Court's prior Decision and Order dated May 7, 2025, which is incorporated by reference herein (see Molloy v Jeganathan, Trustee of Jeganathan Family Irrevocable Trust, 85 Misc 3d 1273[A] [Sup Ct, Putnam County 2025]). In that decision, the Court, among other things, granted the motion of defendant Isaac G. Jeganathan, Trustee of the Jeganathan Family Irrevocable Trust (hereinafter referred to as "Jeganathan"), pursuant to article 65 of the CPLR, to vacate and cancel the notice of pendency due to plaintiff's belated service of the summons upon him and noncompliance with CPLR 6512 (see id. at *2-4; see also CPLR 6514 [a]). A brief synopsis of the current procedural posture follows.

On December 13, 2024, plaintiff commenced this action by filing a summons and verified complaint, which was subsequently amended (see NY St Cts Elec Filing [NYSCEF] Doc Nos. 1, 9, summons and complaint, amended verified complaint in Molloy v. Jeganathan et al., Sup Ct, Putnam County, index No. 502218/2024). On April 21, 2025, Jeganathan interposed an answer to the amended complaint, asserting, as relevant here, that plaintiff failed to obtain in personam jurisdiction over him (see NYSCEF Doc No. 34, verified answer).

On May 19, 2025, Jeganathan filed a motion seeking two branches of relief. As for the first, he moves to disqualify plaintiff's counsel from this action as a necessary witness in this case based on the advocate-witness rule codified in Rule 3.7 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0). Secondly, Jeganathan moves to dismiss plaintiff's amended complaint, as asserted against him, for lack of personal jurisdiction based on defective service (see generally CPLR 3211 [a] [8]).

Plaintiff filed opposition papers to the motion on May 27, 2025. Jeganathan, in turn, filed reply papers to his motion on May 29, 2025. The underlying motion is therefore fully submitted.

A. Service Upon Defendant Jeganathan

Beginning first with that branch of his motion to dismiss the amended complaint as asserted against him for lack of personal jurisdiction,^[FN2] Jeganathan contends that the process server's affidavit reflecting that he resorted to the affix and mail method constituted defective service. Jeganathan asserts that both plaintiff and her attorney, who reside in the nearby property known as 11 October Lane, knew that Jeganathan has not resided at the 8 October Lane premises for almost 25 years; thus, that property is not Jeganathan's last known residence. Jeganathan maintains that the 8 October Lane premises is not his residence, nor his actual place of business since it is a residential property owned by a family trust.

In opposition, plaintiff simply counters that the process server properly effectuated "nail and mail" service upon Jeganathan in accordance with CPLR 308 (4) because that was his last known residence. Plaintiff alternatively argues that the 8 October Lane premises is Jeganathan's actual place of business because he owns that property as a trustee, further contending that the trust in relation thereto constitutes a business. According to plaintiff, Jeganathan is conducting business as a trustee in his endeavor to list and sell the 8 October Lane premises, which she posits is an asset of a real estate trust. Plaintiff thus claims that the 8 October Lane premises "serves no other purpose than being a business" (NYSCEF Doc No. 43, affirmation of counsel for plaintiff in opp to mot ¶ 31).

CPLR 308 (4) provides that where service cannot be made pursuant to CPLR 308 (1) or (2) "with due diligence," the summons and complaint may be affixed to the door of either "the actual place of business, dwelling place[,] or usual place of abode" of the defendant, followed by a subsequent mailing thereof. It is clear that service by this method consists of two separate acts — one of affixing and the other of mailing — and that service cannot be considered complete until both acts are properly done.

"Service pursuant to CPLR 308 (4) may be used only where service under CPLR 308 (1) or (2) cannot be made with 'due diligence'" (Niebling v Pioreck, 222 AD3d 873, 875 [2d Dept 2023]). "The due diligence requirement of CPLR 308 (4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received. 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 875). "What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality" (McSorley v Spear, 50 AD3d 652, 653 [2d Dept 2008], lv denied 10 NY3d 715 [2008]).

"Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308. Where service is effected pursuant to CPLR 308 (4), the affix and mail method, the plaintiff must demonstrate that the summons was affixed to the door of the dwelling place or usual place of abode of the person to be served and mailed to such person's last known residence" (Handler v Whelan, 226 AD3d 880, 882 [2d Dept 2024] [internal quotation marks and citations omitted]).

"The 'dwelling place' is one at which the defendant is actually residing at the time of delivery. The 'usual place of abode' is a place at which the defendant lives with a degree of permanence and stability and to which he or she intends to return" (id. [internal brackets, [*3]quotation marks, and citation omitted]; accord Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 777 [2d Dept 2017]).

Here, the Court holds that the evidence submitted in support of Jeganathan's motion establish that the 8 October Lane premises at which the amended summons and complaint were affixed was not his actual dwelling place or usual place of abode at the time service was purportedly made; and therefore, the process server's service in this regard was defective. Recitation of the pertinent facts is necessary here in applying the legal principles.

The affidavit of service in question reflects that the process server made three attempts on nonconsecutive days to personally serve Jeganathan at the 8 October Lane premises prior to affixing the amended summons and complaint to the door at 10:20 a.m. on March 8, 2025, which was a Saturday morning (see NYSCEF Doc No. 13, affidavit of service; see also CPLR 308 [4]).^[FN3] The process server's affidavit states that he "was unable to find defendant or a person of suitable age and discretion thereat, having called there three times" on March 4, 2025, at 11:08 p.m., March 7, 2025, at 1:08 p.m., and March 8, 2025, at 10:20 a.m., adding that he "attempted to serve the . . . legal papers [upon Jeganathan] on three occasions" (NYSCEF Doc No. 13, affidavit of service [emphasis added]). Notably, the process server states in the affidavit of service that "[t]he house is for sale and is vacant of residents," that "[t]here is a lockbox on the front door," and that "[a] copy of the legal papers were taped to the front door [of the home] on the last [service] attempt" (id.).

In support of his motion, Jeganathan submits his affirmation along with a copy of his driver's license. In his affirmation, Jeganathan attests that he has not lived at the October 8 Lane property since 1991 when he was 18 years old and that he has been residing in Sarasota, Florida since 2021. Jeganathan provides a copy of his Florida driver's license, issued in November of 2021, reflecting a redacted address in the City of Sarasota. Plaintiff did not controvert this evidence. Such tends to support the conclusion that Jeganathan is a domiciliary of Florida, not New York, as demonstrated by his Florida-issued driver's license. Jeganathan further states that he has "never received a copy of any amended [s]ummons and [c]omplaint or any other documents in this action" (NYSCEF Doc No. 42, affirmation of defendant Jeganathan in supp of mot ¶ 5).

What's more significant is that plaintiff concedes in her opposition papers that "no one has resided at [the] October 8 Lane [property] since the early days of 2020" and that the only use of the property since 2023 "has been as a real estate investment" (NYSCEF Doc No. 43, affirmation of counsel for plaintiff in opp to mot ¶ 25). Plaintiff's prior knowledge that Jeganathan did not reside there at the time service was effectuated undercuts any argument by her that such property was Jeganathan's "dwelling place" or "usual place of abode" (Handler v Whelan, 226 AD3d at 882; see Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777). It is undisputed that, at the time of the attempts at personal service at the 8 October Lane premises were made in early March of 2025, plaintiff was aware that Jeganathan did not live there; thus, the process server's further attempts at service did not constitute "due diligence" prior to resorting to "nail and mail" service.

The Court finds that the process server's three attempts to personally deliver the amended summons and complaint to Jeganathan at the 8 October Lane premises, which the process server knew was vacant and for sale, did not constitute due diligence. The process server failed to make "genuine inquiries about [Jeganathan's] whereabouts and place of employment" (McSorley v Spear, 50 AD3d 652, 653-654 [2d Dept 2008]). Consequently, service upon Jeganathan was defective (cf. Shirley Plaza Realty Corp. v Kun Dan, 77 Misc 3d 128[A], *2 [2d Dept, 9th & 10th Jud Dists 2022]).

No evidence was adduced by plaintiff that the process server made any other genuine inquiries about defendant's whereabouts, place of business, any associated business address, or work schedule, if any. There is no indication in the record that the process server made any attempt to locate Jeganathan's place of employment or a business address in order to attempt to effectuate service at his workplace (see Sams Distribs., LLC v Friedman, 235 AD3d 1021, 1023 [2d Dept 2025]).

"The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process" (Citimortgage, Inc. v Unger, 230 AD3d 1226, 1227 [2d Dept 2024] [internal quotation marks and citations omitted]). "Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (id. [internal quotation marks and citations omitted]). "The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff" (Hsu v Shields, 111 AD3d 674, 674 [2d Dept 2013]).

In the case at hand, the affidavit of service filed by plaintiff does not demonstrate that Jeganathan was properly served pursuant to CPLR 308 (4). Jeganathan offers specific facts and statements, along with documentary evidence, demonstrating that the October 8 Lane premises was not his dwelling place or usual place of abode and that he did not reside there. Plaintiff's prior knowledge and admission that the subject property was vacant, coupled with Jeganathan's affirmation and motion exhibit, rebuts any presumption of service by the process server's affidavit of service (see CPLR 308 [4]; compare Citimortgage, Inc. v Unger, 230 AD3d at 1228). Plaintiff, in opposition, failed to submit documentary evidence sufficient to dispositively establish that, at the time of service, the address where the process was served was Jeganathan's actual dwelling place or usual place of abode.

Jeganathan made specific averments that, at the time of the purported service, the October 8 Lane premises was not his actual dwelling place or usual place of abode, and that he has not lived there since 1991 (see NYSCEF Doc No. 42, affirmation of defendant Jeganathan in supp of mot ¶ 3-4). Jeganathan states in his affirmation that he was never personally served, that he did not reside at the October Lane address where the process server attempted personal service and eventually affixed the papers, and that he actually resides in the State of Florida (see id.; U.S. Bank N.A. v Henry, 219 AD3d 854, 857 [2d Dept 2023]; Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777). More importantly, plaintiff concedes — by and through her attorney who also lives with her — that she knew that no one has resided at the October 8 Lane premises for approximately five years.

Further, contrary to plaintiff's contention, "the purported reasonableness of the plaintiff's belief that she was effecting service at a proper address does not transform an improper service address into a proper one" (Handler v Whelan, 226 AD3d at 882 [internal quotation marks and citation omitted]) — "given how exacting the Legislature has prescribed the methods of service and the need for courts and litigants to have certainty and reliability in how the law is applied in [*4]order to avoid generating collateral disputes over these matters" (Everbank v Kelly, 203 AD3d 138, 147 [2d Dept 2022]). Because the amended summons and complaint were affixed to Jeganathan's last known address rather than his actual dwelling place or usual place of abode, the purported service was ineffective and personal jurisdiction was not acquired over him (see Handler v Whelan, 226 AD3d at 882; Feinstein v Bergner, 48 NY2d 234, 241 [1979]).

"Where the defendant denies residing at the premises where service allegedly was made, the sworn denial, combined with documentary and other evidence supporting such claim, is sufficient to rebut the plaintiff's prima facie showing of proper service and to necessitate an evidentiary hearing" (American Home Mtge. Acceptance, Inc. v Lubonty, 188 AD3d 767, 769-770 [2d Dept 2020], quoting U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155 [2d Dept 2016]). That said, a traverse hearing is generally not required absent specific factual allegations (see Kotbi v Najjar, 228 AD3d 434, 435 [1st Dept 2024], lv denied 42 NY3d 911 [2025]; Mileski v MSC Indus. Direct Co., Inc., 159 AD3d 690, 693 [2d Dept 2018]; Ruiz v Alcantara, 122 AD3d 451, 452 [1st Dept 2014]

Here, the Court holds that a traverse hearing is not required (see id.; cf. Hallston Manor Farm, LLC v Andrew, 60 AD3d 1330, 1331 [4th Dept 2009]). Plaintiff, in the first instance, failed to make a prima facie showing of proper service upon Jeganathan to warrant an evidentiary hearing in light of her admission that she knew that he has not lived at the 8 October Lane premises since 2020. Also, the process server's affidavit of service does not give rise to the presumption of proper service since it states therein that he "called there three times" — the meaning of which is somewhat obscure. Moreover, it was readily apparent that no one lived at subject property based on the process server's own statement in the affidavit that "[t]he house is for sale and is vacant of residents" (NYSCEF Doc No. 13, affidavit of service). Because the process server's affidavit does not constitute prima facie evidence of proper service pursuant to CPLR 308 (4), the burden does not shift to Jeganathan to prove otherwise. The Court thus holds that no evidentiary hearing is required on the issue of whether service was properly effectuated upon Jeganathan under CPLR 308 (4) (compare Sileo v Victor, 104 AD3d 669, 670 [2d Dept 2013]).

Plaintiff's additional contention that the 8 October Lane premises constitutes Jeganathan's "actual place of business" is wholly without merit. Such argument is rejected as a matter of the law and based upon the facts in the record. For purposes of service, an individual's "actual place of business" includes "any location that the [individual], through regular solicitation or advertisement, has held out as [their] place of business" (CPLR 308 [6]). "A person's 'actual place of business' must be where the person is physically present with regularity, and that person must be shown to regularly transact business at that location" (Selmani v City of New York, 100 AD3d 861, 861 [2d Dept 2012]).

Here, there is simply no evidence adduced by plaintiff demonstrating that Jeganathan held out the 8 October Lane premises to be his actual places of business either through regular solicitation or advertisement (see CPLR 308 [6]). Nor did plaintiff proffer any proof that Jeganathan was physically present with regularity or that he routinely transacted business at that property where "nail and mail" process was effectuated (see 1136 Realty, LLC v 213 Union St. Realty Corp., 130 AD3d 590, 591 [2d Dept 2015]; Katz v Emmett, 226 AD2d 588, 588 [2d Dept 1996]). For these reasons, the Court rejects plaintiff's specious argument that the 8 October Lane premises is Jeganathan's "actual place of business."

In sum, the affidavit of service in this case does not comply with the required due [*5]diligence requirement in attempting to effectuate service pursuant to CPLR 308 (1) or (2) before resorting to "nail and mail" service (see CPLR 308 [4]). The purported nail and mail service here was ineffective. Under these circumstances, the purported service of the amended summons and complaint was defective as a matter of law (see Niebling v Pioreck, 222 AD3d at 875; Faruk v Dawn, 162 AD3d 744, 746 [2d Dept 2018]; Prudence v Wright, 94 AD3d 1073, 1074 [2d Dept 2012]).

Because the attempted service of the amended summons and complaint was defective, the Court does not have personal jurisdiction over Jeganathan (see Gurevitch v Goodman, 269 AD2d 355, 356 [2000]). Therefore, the Court grants that branch of his motion to dismiss the amended complaint insofar as asserted against him for lack of personal jurisdiction (see Abajian v St. Francis Hosp., 42 AD3d 554, 554 [2d Dept 2007]; County of Nassau v Long, 35 AD3d 787, 787 [2d Dept 2006]; Sanders v Elie, 29 AD3d 773, 774 [2d Dept 2006]; cf. Venneri v Gallo, 23 AD3d 376 [2d Dept 2005]).

B. Jeganathan's Motion to Disqualify Plaintiff's Attorney

In light of the foregoing determination, that branch of Jeganathan's motion to disqualify plaintiff's present counsel as her attorney of record, on the ground that Mr. Molloy is a necessary witness in this action, is rendered moot. The Court notes that at the preliminary conference on May 30, 2025, the other defendants, through their counsel, expressed that they take no position on Jeganathan's motion to disqualify plaintiff's attorney.^[FN4] Thus, the Court need not address the parties' arguments in connection with this branch of his motion (see generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).

To the extent not specifically mentioned herein, plaintiff's remaining arguments have been evaluated and determined to be without merit. Any other relief requested that is not squarely addressed herein is either rendered academic or denied based on this decision. Accordingly, it is hereby:

Ordered that the underlying motion of Defendant ISAAC G. JEGANATHAN, TRUSTEE OF THE JEGANATHAN FAMILY IRREVOCABLE TRUST (Mot. Seq. No. 2), is granted in part, as specifically set forth herein; and it is further

Ordered that that branch of defendant JEGANATHAN's motion to dismiss the amended complaint insofar as asserted against him for lack of personal jurisdiction is GRANTED; and it is further

Ordered that the counterclaims asserted by defendant JEGANATHAN in his "Verified Answer" filed on April 23, 2025 (NYSCEF Doc No. 34), are dismissed as moot; and it is further

Ordered that that branch of defendant JEGANATHAN's to disqualify John G. Molloy, Esq., and his law firm John Gifford Molloy P.C., as counsel for Plaintiff Michelle T. Molloy on the ground that her attorney is a necessary witness in this case is rendered moot; and it is further

Ordered that the caption of this action shall be amended by removing Defendant ISAAC G. JEGANATHAN, TRUSTEE OF THE JEGANATHAN FAMILY IRREVOCABLE TRUST as a party-defendant herein; and the caption shall henceforth be as follows:

Plaintiff,                                 Index No. 502218/2024

Ordered that that branch of defendant JEGANATHAN's prior motion (under mot. seq. no. 1), made pursuant to 22 NYCRR 130-1.1, to impose court-ordered sanctions against Plaintiff Michelle T. Molloy, which was held in abeyance in this Court's prior decision dated May 7, 2025, is DENIED in light of the dismissal herein; and it is further

Ordered that the attorneys for the remaining parties shall appear for a Compliance Conference before the undersigned on Friday, June 27, 2025, at 10 a.m.

The foregoing decision constitutes the order of the Court.