Preview
FILED: WESTCHESTER COUNTY CLERK 07/27/2022 04:58 PM INDEX NO. 67535/2021
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
_______________________________________---Ç
MARIA CAMACHO, as Administrator of
the Estate of DIEGO F. TREJO, Deceased, ATTORNEY'S AFFIRMATION
IN SUPPORT OF CROSS-
Plaintiff, MOTION AND IN OPPOSITION
TO DEFENDANT'S MOTION
-against-
Index No.: 67535/ 2021
ROBERT C. SCHUSTER, STEPHEN E.
DECKOFF, and STEPHEN DECKOFF,
Defendant.
________----._.-----------------_______....x
ROCCO F. D'AGOSTINO, an attorney duly admitted to practice law in the State of New
York, duly sworn, hereby affirms the following under the penalty of perjury pursuant to CPLR R2106:
1. This office is retained to represent the Plaintiff, MARIA CAMACHO, as
Administrator of the Estate of DIEGO F. TREJO, Deceased. As such, I am fully familiar with the
facts and circumstances of this case.
2. This Affirmation and attached exhibits are submitted in Support of the Plaintiff s
Defense"
Cross-Motion for an order: (i)Striking the "Twenty-Third Affirmative filed by Defendants
STEPHEN E. DECKOFF, and STEPHEN DECKOFF [NYSCEF Doc. No.: 9]; or in the alternative
(ii) granting Plaintiff an extension of time to serve the summons and complaint pursuant to CPLR
§306-b based upon good cause and/or in the interest of justice and further directing service of by
first class mail upon their attomeys MAURO LILLING NAPARTY LLP because service of the
summons and complaint upon Defendants STEPHEN E. DECKOFF, and STEPHEN DECKOFF is
impracticable under C.P.L.R. § 308 (1)(2) and (4).
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BACKGROUND
3. The instant wrongful death action concerns the tragic death of twenty-two (22) year
old DIEGO F. TREJO (and his dog Lily) and is highly meritorious. Just prior to the fatal head-on
automobile collision, Defendants Robert C. Schuster and Stephen E. Deckoff had consumed alcohol
rage"
and then operated their motor vehicles in a "road battle along a one and one-tenth mile stretch
along Bedford Road, in the Town of Bedford. This fatal stretch consisted of a dark, twisty two (2)
rage,"
lane highway separated by double yellow lines. Motivated by "road both Schuster's and the
vehicle driven by Stephen E. Deckoff (owned by his co-defendant father, Stephen Deckoff) proceeded
recklessly at speeds in excess of twice the speed limit, with high-beams on, as the two vehicles
"wrong"
aggressively engaged in brake-checking, following too closely and passing each other on the
side of the double yellow lines. As Stephen E. Deckoff and Schuster compounded and escalated each
other's pernicious rage, Diego Trejo innocently drove his 2004 Acura towards them in a westerly
direction at a lawful speed within the proper lane. Seconds after Schuster had passed Deckoff going
94 MPH around a blind turn on the wrong side of the double yellow lines, Schuster collided head-on
with the 2004 Acura tragically ending the life of Diego Trejo his dog Lily.
4. Stephen E. Deckoff's vehicle did not collide with Diego Trejo's 2004 Acura -
only
Robert Schuster's vehicle did. And because Diego Trejo was deceased, Stephen E. Deckoff and
rage"
Robert Schuster were the only two (2) living witnesses to this tragic "road incident. So when
itcame time to prosecute, the Westchester County District Attorney offered immunity to Stephen E.
Deckoff in exchange for his testimony against Robert Schuster. So despite all of his reckless
flirtations with danger, Stephen E. Deckoff managed to escape death, physical injury, vehicular
damage and criminal prosecution. And now both Deckoffs hope to escape civil responsibility as well.
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"B"
5. Robert Schuster pled guilty to Aggravated Vehicular Homicide a Class Felony,
in violation of Penal Law § 125.14 (3) and was sentenced on December 15, 2021 to two to six years
in state prison by the Honorable Barry Warhit, Judge of the Westchester County Court. Schuster is
incarcerated at the Wende Correctional Facility in Alden, New York until at least December 15, 2023.
THIS COURT OBTAINED PERSONAL JURISDICTION OVER DEFENDANTS
STEPHEN E. DECKOFF AND STEPHEN DECKOFF
6. In the interest of judicial economy, the Affirmation of Wesley Serra dated July 26,
Defendants'
2022 (Exhibit "A"), filed in opposition to the Deckoff motion to dismiss, is respectfully
incorporated in this Affirmation in the same way as ifall factual statements had been repeated herein.
7. Plaintiffcommenced the present action by filinga summons with notice on December
15, 2021, followed by Verified Complaint on April 7, 2022. Plaintiff served Defendant SCHUSTER
personally at the Wende Correctional Facility without incident.
8. Plaintiff properly served both Deckoff Defendants pursuant to CPLR 308 (4) in the
manner described in the affidavits of service by Ahkem Chu, Jr. (attached herein as Exhibit "B") and
the Affidavit of Ahkem Chu, Jr.dated July 26, 2022 (attached hereto as Exhibit "C").
9. It remains undisputed that both Deckoffs actually received the Summons and
Verified Complaint. It isalso undisputed that each Deckoff retained two sets of retained counsel. It
also remains undisputed that both Deckoffs filed a timely Answer to the Verified Complaint.
10. The Deckoffs refused to cooperate with the process server and even attempted to avoid
"B." Deckoffs'
service of process. See Exhibit Thus, itwould be unjust to reward the pusillanimous
effort to escape this Court's jurisdictional reach and thereby deprive Plaintiff itsday in court.
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11. Accordingly, this Court should issue an order striking the "Twenty-Third Affirmative
Defense"
filed by Defendants STEPHEN E. DECKOFF, and STEPHEN DECKOFF [NYSCEF Doc.
No.: 9] on the grounds that both STEPHEN E. DECKOFF and STEPHEN DECKOFF had been
lawfully served with the summons and verified complaint in accordance with Article 3 of the CPLR.
Based upon the facts submitted herein, this Court should also issue a declaration that this Court has,
in fact, obtained personal jurisdiction over Defendants STEPHEN E. DECKOFF, and STEPHEN
DECKOFF.
IN THE ALTERNATIVE, THIS COURT SHOULD GRANT AN EXTENSION OF TIME
TO SERVE STEPHEN E. DECKOFF AND STEPHEN DECKOFF BASED UPON GOOD
CAUSE AND/OR IN THE INTEREST OF JUSTICE
12. In the alternative, if this court should find any technically defect with service of
process, this Court should grant Plaintiff an extension of time to serve the summons and complaint
upon Defendants STEPHEN E. DECKOFF, and STEPHEN DECKOFF pursuant to CPLR §306-b
based upon good cause and/or in the interest of justice.
13. CPLR §306-b clearly states that:
"Service of the summons and complaint . . . shall
be made within one
hundred twenty days after the commencement of the action . .. . If
service is not made upon a defendant within the time provided in this
section, the court, upon motion, shall dismiss the action without
prejudice as to that defendant, or upon good cause shown or in the
service."
interest of justice, extend the time for
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14. The extension afforded by CPLR 306-b is applicable in cases where service is timely
made within the period but subsequently found to have been defective. See Earle v.
120-day
Valente, 302 A.D.2d 353 (2d Dept 2003) (citing Citron v Schlossberg, 282 A.D.2d 642, 723
N.Y.S.2d 712; Murphy v Hoppenstein, 279 A.D.2d 410, 720 N.Y.S.2d 62; Salamon v Charney, 269
A.D.2d 256, 703 N.Y.S.2d 42).
15. In the instant case, timely service of the summons and complaint was made within the
120-day period. If this Court should find that such service is defective, itshould grant the extension
afforded by CPLR 306-b. See Earle v. Valente, 302 A.D.2d 353 (2d Dept 2003).
(1"
16. In Woods v M.B.D. Community Hous. Corp., 90 A.D.3d 430 Dep't 2011), the
justice'
Appellate Division declared: "To meet the 'interest of standard, the court must make 'a
careful judicial analysis of the factual setting of the case and a balancing of the competing
interests,'
including the 'expiration of the [s]tatute of [1]imitations, the meritorious nature of the
cause of action, the length of delay in service, the promptness of a plaintiffs request for the
defendant."'
extension of time, and prejudice to Citing Leader v Maroney, Ponzini & Spencer, 97
NY2d 95, 105-106 [2001].
17. The instant action was timely commenced by proper filing, however, Plaintiff s
highly meritorious wrongful death claim could possibly be extinguished in the absence of an
extension since the statute of limitations may be expired by the time this motion is
decided. Defendants, on the other hand, would suffer no prejudice since they did receive notice of
this lawsuit well in time to retain two sets of counsel and also filea timely Answer to the Verified
Complaint. Thus, the extension afforded by CPLR 306-b should be granted in the interest ofjustice.
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18. And ifthis Court should find a technical defect with service of process despite the
diligent good-faith effort by Plaintiff to effectuate timely service in accordance with C.P.L.R. § 308
(1)(2) and (4), this Court should issue an order pursuant to CPLR §308 (5) directing service of said
summons and by first class mail upon MAURO LILLING NAPARTY LLP, the attorneys for
Defendants STEPHEN E. DECKOFF, and STEPHEN DECKOFF, since service of the summons and
complaint has certainly proven to be impracticable under C.P.L.R. § 308 (1)(2) and (4).
19. Indeed, C.P.L.R. § 308 states that: "Personal service upon a natural person shall be
made by any of the following methods: . .. 5. in such manner as the court, upon motion without
section."
notice, directs, ifservice is impracticable under paragraphs one, two and four of this
20. Defendant STEPHEN E. DECKOFF executed a sworn deposition to police stating
that he resided at E Bedford Center Road, Bedford Hills, New York 10507 while his NYS
Driver's license stated that he resided atM Bedford Center Road, Bedford Hills, New York 10507.
In his affidavit sworn to on July 15, 2022, STEPHEN E. DECKOFF claimed that his residence and
usual place of abode is 432 Park Avenue, New York, N.Y. 10022 which is a private
residential skyscraper containing 125 units at 57th Street and Park Avenue, overlooking Central
Park. STEPHEN E. DECKOFF intentionally did not state which specific unit in the 125-unit
complex that he allegedly resided in. Thus, even now, STEPHEN E. DECKOFF continues playing
"hide-and-seek"
to evade service of process. Itgoes without saying that itwould be highly
"impractical" - -
for any process server to personally locate and then serve a Defendant such as
STEPHEN E. DECKOFF who is expecting to be served and motivated to resist service at any cost.
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21. Similarly, Defendant STEPHEN DECKOFF has a NYS Driver's license and
registration indicating that he currently resides at 290 Bedford Center Road, Bedford Hills, New
York 10507. However, in his affidavit sworn to on July 15, 2022, STEPHEN DECKOFF claimed
that his residence and usual place of abode is 3 Peter Bay, St. John, U.S. Virgin Islands 00830 and
that he also owns an apartment within 432 Park Avenue, New York, N.Y. 10022 (without
"impractical"
specifying which apartment unit). Again, itwould be highly fora process server to
personally locate and then serve a Defendant such as STEPHEN DECKOFF in a foreign country
who is expecting to be served and motivated to resistservice at any cost.
22. The seminal case in the area of CPLR 308 (5) is Dobkin v. Chapman, 21 N.Y.2d
490, 289 N.Y.S.2d 161, 236 N.E.2d 451 (1968). Dobkin involved three cases arriving out of three
separate New York auto accidents. In each case, the plaintiff made attempts to serve the defendants
to no avail. Thus, in accordance with CPLR 308(5), the lower courts permitted such service as: (1)
Ordinary mail on thedefendants at theirlast known residence; (2) Publication following an
earlier CPLR 308 (5) order granting service upon the Secretary of State, which failed to meet the
defendants'
requirements of the Vehicle and Traffic Law; and (3) Mailing to last known address in
New York and delivery of a copy to the insurance carrier. The Court of Appeals found no abuse of
courts'
discretion in the lower determinations. See Dobkin v. Chapman, 21 N.Y.2d 490.
23. In summary, if this Court should find a technical defect with service of process
(which I strongly aver that itshould not), this Court should: (i) grant an extension of time to serve the
summons and complaint pursuant to CPLR §306-b; and (ii) direct service by firstclass mail upon
the Deckoffs attorneys, MAURO LILLING NAPARTY LLP, pursuant to CPLR §308 (5).
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24. No prior application for the relief requested in connection with this motion has been
made to thisor any other court except as previously referred to herein.
WHEREFORE, your affiant respectfully prays that Defendant's motion be denied, that this
Cross-Motion be granted in all respects, together with such other and further relief as to the Court
may deem just and proper.
AFFIRMED: WHITE PLAINS, NEW YORK
July 27th, 2022
ROCCO F. D'AGOSTINO, ESQ.
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Preview
FILED: WESTCHESTER COUNTY CLERK 07/27/2022 04:58 PM INDEX NO. 67535/2021 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER _______________________________________---Ç MARIA CAMACHO, as Administrator of the Estate of DIEGO F. TREJO, Deceased, ATTORNEY'S AFFIRMATION IN SUPPORT OF CROSS- Plaintiff, MOTION AND IN OPPOSITION TO DEFENDANT'S MOTION -against- Index No.: 67535/ 2021 ROBERT C. SCHUSTER, STEPHEN E. DECKOFF, and STEPHEN DECKOFF, Defendant. ________----._.-----------------_______....x ROCCO F. D'AGOSTINO, an attorney duly admitted to practice law in the State of New York, duly sworn, hereby affirms the following under the penalty of perjury pursuant to CPLR R2106: 1. This office is retained to represent the Plaintiff, MARIA CAMACHO, as Administrator of the Estate of DIEGO F. TREJO, Deceased. As such, I am fully familiar with the facts and circumstances of this case. 2. This Affirmation and attached exhibits are submitted in Support of the Plaintiff s Defense" Cross-Motion for an order: (i)Striking the "Twenty-Third Affirmative filed by Defendants STEPHEN E. DECKOFF, and STEPHEN DECKOFF [NYSCEF Doc. No.: 9]; or in the alternative (ii) granting Plaintiff an extension of time to serve the summons and complaint pursuant to CPLR §306-b based upon good cause and/or in the interest of justice and further directing service of by first class mail upon their attomeys MAURO LILLING NAPARTY LLP because service of the summons and complaint upon Defendants STEPHEN E. DECKOFF, and STEPHEN DECKOFF is impracticable under C.P.L.R. § 308 (1)(2) and (4). 3 1 of 8 FILED: WESTCHESTER COUNTY CLERK 07/27/2022 04:58 PM INDEX NO. 67535/2021 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/27/2022 BACKGROUND 3. The instant wrongful death action concerns the tragic death of twenty-two (22) year old DIEGO F. TREJO (and his dog Lily) and is highly meritorious. Just prior to the fatal head-on automobile collision, Defendants Robert C. Schuster and Stephen E. Deckoff had consumed alcohol rage" and then operated their motor vehicles in a "road battle along a one and one-tenth mile stretch along Bedford Road, in the Town of Bedford. This fatal stretch consisted of a dark, twisty two (2) rage," lane highway separated by double yellow lines. Motivated by "road both Schuster's and the vehicle driven by Stephen E. Deckoff (owned by his co-defendant father, Stephen Deckoff) proceeded recklessly at speeds in excess of twice the speed limit, with high-beams on, as the two vehicles "wrong" aggressively engaged in brake-checking, following too closely and passing each other on the side of the double yellow lines. As Stephen E. Deckoff and Schuster compounded and escalated each other's pernicious rage, Diego Trejo innocently drove his 2004 Acura towards them in a westerly direction at a lawful speed within the proper lane. Seconds after Schuster had passed Deckoff going 94 MPH around a blind turn on the wrong side of the double yellow lines, Schuster collided head-on with the 2004 Acura tragically ending the life of Diego Trejo his dog Lily. 4. Stephen E. Deckoff's vehicle did not collide with Diego Trejo's 2004 Acura - only Robert Schuster's vehicle did. And because Diego Trejo was deceased, Stephen E. Deckoff and rage" Robert Schuster were the only two (2) living witnesses to this tragic "road incident. So when itcame time to prosecute, the Westchester County District Attorney offered immunity to Stephen E. Deckoff in exchange for his testimony against Robert Schuster. So despite all of his reckless flirtations with danger, Stephen E. Deckoff managed to escape death, physical injury, vehicular damage and criminal prosecution. And now both Deckoffs hope to escape civil responsibility as well. 4 2 of 8 FILED: WESTCHESTER COUNTY CLERK 07/27/2022 04:58 PM INDEX NO. 67535/2021 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/27/2022 "B" 5. Robert Schuster pled guilty to Aggravated Vehicular Homicide a Class Felony, in violation of Penal Law § 125.14 (3) and was sentenced on December 15, 2021 to two to six years in state prison by the Honorable Barry Warhit, Judge of the Westchester County Court. Schuster is incarcerated at the Wende Correctional Facility in Alden, New York until at least December 15, 2023. THIS COURT OBTAINED PERSONAL JURISDICTION OVER DEFENDANTS STEPHEN E. DECKOFF AND STEPHEN DECKOFF 6. In the interest of judicial economy, the Affirmation of Wesley Serra dated July 26, Defendants' 2022 (Exhibit "A"), filed in opposition to the Deckoff motion to dismiss, is respectfully incorporated in this Affirmation in the same way as ifall factual statements had been repeated herein. 7. Plaintiffcommenced the present action by filinga summons with notice on December 15, 2021, followed by Verified Complaint on April 7, 2022. Plaintiff served Defendant SCHUSTER personally at the Wende Correctional Facility without incident. 8. Plaintiff properly served both Deckoff Defendants pursuant to CPLR 308 (4) in the manner described in the affidavits of service by Ahkem Chu, Jr. (attached herein as Exhibit "B") and the Affidavit of Ahkem Chu, Jr.dated July 26, 2022 (attached hereto as Exhibit "C"). 9. It remains undisputed that both Deckoffs actually received the Summons and Verified Complaint. It isalso undisputed that each Deckoff retained two sets of retained counsel. It also remains undisputed that both Deckoffs filed a timely Answer to the Verified Complaint. 10. The Deckoffs refused to cooperate with the process server and even attempted to avoid "B." Deckoffs' service of process. See Exhibit Thus, itwould be unjust to reward the pusillanimous effort to escape this Court's jurisdictional reach and thereby deprive Plaintiff itsday in court. 5 3 of 8 FILED: WESTCHESTER COUNTY CLERK 07/27/2022 04:58 PM INDEX NO. 67535/2021 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/27/2022 11. Accordingly, this Court should issue an order striking the "Twenty-Third Affirmative Defense" filed by Defendants STEPHEN E. DECKOFF, and STEPHEN DECKOFF [NYSCEF Doc. No.: 9] on the grounds that both STEPHEN E. DECKOFF and STEPHEN DECKOFF had been lawfully served with the summons and verified complaint in accordance with Article 3 of the CPLR. Based upon the facts submitted herein, this Court should also issue a declaration that this Court has, in fact, obtained personal jurisdiction over Defendants STEPHEN E. DECKOFF, and STEPHEN DECKOFF. IN THE ALTERNATIVE, THIS COURT SHOULD GRANT AN EXTENSION OF TIME TO SERVE STEPHEN E. DECKOFF AND STEPHEN DECKOFF BASED UPON GOOD CAUSE AND/OR IN THE INTEREST OF JUSTICE 12. In the alternative, if this court should find any technically defect with service of process, this Court should grant Plaintiff an extension of time to serve the summons and complaint upon Defendants STEPHEN E. DECKOFF, and STEPHEN DECKOFF pursuant to CPLR §306-b based upon good cause and/or in the interest of justice. 13. CPLR §306-b clearly states that: "Service of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action . .. . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the service." interest of justice, extend the time for 6 4 of 8 FILED: WESTCHESTER COUNTY CLERK 07/27/2022 04:58 PM INDEX NO. 67535/2021 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/27/2022 14. The extension afforded by CPLR 306-b is applicable in cases where service is timely made within the period but subsequently found to have been defective. See Earle v. 120-day Valente, 302 A.D.2d 353 (2d Dept 2003) (citing Citron v Schlossberg, 282 A.D.2d 642, 723 N.Y.S.2d 712; Murphy v Hoppenstein, 279 A.D.2d 410, 720 N.Y.S.2d 62; Salamon v Charney, 269 A.D.2d 256, 703 N.Y.S.2d 42). 15. In the instant case, timely service of the summons and complaint was made within the 120-day period. If this Court should find that such service is defective, itshould grant the extension afforded by CPLR 306-b. See Earle v. Valente, 302 A.D.2d 353 (2d Dept 2003). (1" 16. In Woods v M.B.D. Community Hous. Corp., 90 A.D.3d 430 Dep't 2011), the justice' Appellate Division declared: "To meet the 'interest of standard, the court must make 'a careful judicial analysis of the factual setting of the case and a balancing of the competing interests,' including the 'expiration of the [s]tatute of [1]imitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiffs request for the defendant."' extension of time, and prejudice to Citing Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]. 17. The instant action was timely commenced by proper filing, however, Plaintiff s highly meritorious wrongful death claim could possibly be extinguished in the absence of an extension since the statute of limitations may be expired by the time this motion is decided. Defendants, on the other hand, would suffer no prejudice since they did receive notice of this lawsuit well in time to retain two sets of counsel and also filea timely Answer to the Verified Complaint. Thus, the extension afforded by CPLR 306-b should be granted in the interest ofjustice. 7 5 of 8 FILED: WESTCHESTER COUNTY CLERK 07/27/2022 04:58 PM INDEX NO. 67535/2021 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/27/2022 18. And ifthis Court should find a technical defect with service of process despite the diligent good-faith effort by Plaintiff to effectuate timely service in accordance with C.P.L.R. § 308 (1)(2) and (4), this Court should issue an order pursuant to CPLR §308 (5) directing service of said summons and by first class mail upon MAURO LILLING NAPARTY LLP, the attorneys for Defendants STEPHEN E. DECKOFF, and STEPHEN DECKOFF, since service of the summons and complaint has certainly proven to be impracticable under C.P.L.R. § 308 (1)(2) and (4). 19. Indeed, C.P.L.R. § 308 states that: "Personal service upon a natural person shall be made by any of the following methods: . .. 5. in such manner as the court, upon motion without section." notice, directs, ifservice is impracticable under paragraphs one, two and four of this 20. Defendant STEPHEN E. DECKOFF executed a sworn deposition to police stating that he resided at E Bedford Center Road, Bedford Hills, New York 10507 while his NYS Driver's license stated that he resided atM Bedford Center Road, Bedford Hills, New York 10507. In his affidavit sworn to on July 15, 2022, STEPHEN E. DECKOFF claimed that his residence and usual place of abode is 432 Park Avenue, New York, N.Y. 10022 which is a private residential skyscraper containing 125 units at 57th Street and Park Avenue, overlooking Central Park. STEPHEN E. DECKOFF intentionally did not state which specific unit in the 125-unit complex that he allegedly resided in. Thus, even now, STEPHEN E. DECKOFF continues playing "hide-and-seek" to evade service of process. Itgoes without saying that itwould be highly "impractical" - - for any process server to personally locate and then serve a Defendant such as STEPHEN E. DECKOFF who is expecting to be served and motivated to resist service at any cost. 8 6 of 8 FILED: WESTCHESTER COUNTY CLERK 07/27/2022 04:58 PM INDEX NO. 67535/2021 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/27/2022 21. Similarly, Defendant STEPHEN DECKOFF has a NYS Driver's license and registration indicating that he currently resides at 290 Bedford Center Road, Bedford Hills, New York 10507. However, in his affidavit sworn to on July 15, 2022, STEPHEN DECKOFF claimed that his residence and usual place of abode is 3 Peter Bay, St. John, U.S. Virgin Islands 00830 and that he also owns an apartment within 432 Park Avenue, New York, N.Y. 10022 (without "impractical" specifying which apartment unit). Again, itwould be highly fora process server to personally locate and then serve a Defendant such as STEPHEN DECKOFF in a foreign country who is expecting to be served and motivated to resistservice at any cost. 22. The seminal case in the area of CPLR 308 (5) is Dobkin v. Chapman, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451 (1968). Dobkin involved three cases arriving out of three separate New York auto accidents. In each case, the plaintiff made attempts to serve the defendants to no avail. Thus, in accordance with CPLR 308(5), the lower courts permitted such service as: (1) Ordinary mail on thedefendants at theirlast known residence; (2) Publication following an earlier CPLR 308 (5) order granting service upon the Secretary of State, which failed to meet the defendants' requirements of the Vehicle and Traffic Law; and (3) Mailing to last known address in New York and delivery of a copy to the insurance carrier. The Court of Appeals found no abuse of courts' discretion in the lower determinations. See Dobkin v. Chapman, 21 N.Y.2d 490. 23. In summary, if this Court should find a technical defect with service of process (which I strongly aver that itshould not), this Court should: (i) grant an extension of time to serve the summons and complaint pursuant to CPLR §306-b; and (ii) direct service by firstclass mail upon the Deckoffs attorneys, MAURO LILLING NAPARTY LLP, pursuant to CPLR §308 (5). 9 7 of 8 FILED: WESTCHESTER COUNTY CLERK 07/27/2022 04:58 PM INDEX NO. 67535/2021 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/27/2022 24. No prior application for the relief requested in connection with this motion has been made to thisor any other court except as previously referred to herein. WHEREFORE, your affiant respectfully prays that Defendant's motion be denied, that this Cross-Motion be granted in all respects, together with such other and further relief as to the Court may deem just and proper. AFFIRMED: WHITE PLAINS, NEW YORK July 27th, 2022 ROCCO F. D'AGOSTINO, ESQ. 10 8 of 8