On November 01, 2013 a
Order
was filed
involving a dispute between
Lazaro Sanchez,
and
Chan Ying,
Chi Hung,
Extra Space Storage Inc.,
Gabriel Castano,
Jerilynn Horton,
for Tort
in the District Court of Bronx County.
Preview
(FILED: BRONX COUNTY CEERK 99/10/2015. 1 :06.4M NX
INDEX NO. 24105/2013E
NYSCEF DOC. NO. 66 EY BRON ep NYSCEF: 09/10/2015
lA S PART 13
Case Disposed Q
SUPREME COURT OF THE STATE OF NEW YORK Settle Order Q
COUNTY OF BRONX: ?
Pi Schedule Appearance 2
a eee
SANCHEZ,LAZARO Index Ne. 0024105/2013E
-against- Hon..RERNANDO TAPIA
EXTRA SPACE STORAGE INC. Justice.
he hacen eh es ea a Ne Serene aciaeaeNsem en NEN ES
Ki y
4
The following papers numbered 1 to Read on this motion, DISMISSAL
Noticed on January 12_2015 and duly submitted as No. on the Motion Calendar of
PAPERS NUMBERED
Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits
Replying Affidavit and Exhibits
Affidavits and Exhibits
Pleadings - Exhibit
Stipulation(s) - Referee's Report - Minutes
Filed Papers
Memoranda of Law
Upon the forsind parc i
“
Lemse See AY TALNED Dice)
Ine <
a
2
E
ae
Z
/—-
ated: ? (ea Lt
Hon.
FE DO TAPIA, J.S.C.
SUPREME COURT OF THE STATE OF NEW YORK
BRONX COUNTY: Part 13
LAZARO SANCHEZ
Plaintiff,
ve Index No. 24105-13E
EXTRA SPACE STORAGE INC., GABRIEL CASTANO,
JERILYNN HORTON, CHI HUNG, and CHAN YING,
Defendants.
DECISION
Co-Defendant-Ms. Jerilynn Horton, moves for summary judgment to dismiss the complaint under
CPLR 321 1(a)(7) & (8) because of defective service of the complaint.
After careful review of the motion papers, this Court hereby GRANTS Ms. Horton's motion,
based on improper "nail and mail" service.
Plaintiff-Mr. Sanchez, through counsel, argues that service of process upon Ms. Horton was
proper under CPLR 308(4) [a/k/a "nail and mail" and that he exercised due diligence to effect service,
even after a failed attempt by Mr. Felix De Los Santos, see De Los Santos Aff. at ff 3-5, because Mr.
Sanchez was given permission by this Court to re-serve. See 22 Jul 2014 Decision. Furthermore, Mr.
Sanchez contends that Ms. Horton's mere citations of law to support her argument that she was
improperly served is insufficient to support her claim to dismiss the complaint. See Opp. at p. 4.!
Ms. Horton, however, posits that there was no due diligence on Mr. Sanchez's part because the
affidavit made no mention of the "next-door neighbor." See Tisman Aff. at Exh. E; see also Reply at [J]
10 & 13, and McCormack v. Goldstein, 204 AD2d 121, 122 (App Div, 1st Dept 1994) (where the court
' Ms. Whalen's Opposition has no page numbers or paragraphs.
1
held that delivery of papers to a doorperson instead of to the intended recipient at his/her actual dwelling
unit does not constitute proper delivery).
The due diligence component of CPLR 308(4) underscores the legislative preference for in-hand
delivery to someone, whether it is the intended recipient or a person of suitable age and discretion [a/k/a
"SAD person"). See Commentary C308:5 ["Affix and Mail" service], Vincent C. Alexander. Likewise,
the due diligence requirement was not met if none of the attempts was made during a weekend. Spath v.
Zack, 36 AD3d 410, 413 (App Diy, Ist Dept 2007).
Here, although the Texas-based process server attested that he attempted service on Saturday, 27
September 2014, Mr. Sanchez failed to properly serve Ms. Horton, either via personal service [CPLR
308] or via mail [CPLR 312-a] because of the non-descript "next door neighbor" information? Simply
stating "next door neighbor" in the process server's affidavit is insufficient to show due diligence. See
Tisman Aff. at Exh. E. As such, Ms. Horton has valid grounds for her motion to dismiss because service
of process is defective. Had service been properly effected, Ms. Horton could have appeared, based on
CPLR 320(a) [“Defendant’s appearance”]. Since this is not the case, any other issues regarding breach of
labor law and stay of EBTs will not be addressed.
In sum, Movant's motion is GRANTED. There is no personal jurisdiction over Ms. Horton
because service of process was improper. Any other ensuing issues such as Labor Law claims will
therefore not be addressed.
This constitutes the Decision and Order of this Court.
Dated: September 9, 2015
aor
Bronx, NY Hon. Fernando Tapia, J.S.C.
? This trip and fall accident happened on December 14, 2012, while Mr. Sanchez was tree-trimming under the
direction of Defendant-Extra Space Storage Inc. See Tisman Memorandum of Law at pp. 2-3.
2
Document Filed Date
September 10, 2015
Case Filing Date
November 01, 2013
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(FILED: BRONX COUNTY CEERK 99/10/2015. 1 :06.4M NX INDEX NO. 24105/2013E NYSCEF DOC. NO. 66 EY BRON ep NYSCEF: 09/10/2015 lA S PART 13 Case Disposed Q SUPREME COURT OF THE STATE OF NEW YORK Settle Order Q COUNTY OF BRONX: ? Pi Schedule Appearance 2 a eee SANCHEZ,LAZARO Index Ne. 0024105/2013E -against- Hon..RERNANDO TAPIA EXTRA SPACE STORAGE INC. Justice. he hacen eh es ea a Ne Serene aciaeaeNsem en NEN ES Ki y 4 The following papers numbered 1 to Read on this motion, DISMISSAL Noticed on January 12_2015 and duly submitted as No. on the Motion Calendar of PAPERS NUMBERED Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Answering Affidavit and Exhibits Replying Affidavit and Exhibits Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers Memoranda of Law Upon the forsind parc i “ Lemse See AY TALNED Dice) Ine < a 2 E ae Z /—- ated: ? (ea Lt Hon. FE DO TAPIA, J.S.C. SUPREME COURT OF THE STATE OF NEW YORK BRONX COUNTY: Part 13 LAZARO SANCHEZ Plaintiff, ve Index No. 24105-13E EXTRA SPACE STORAGE INC., GABRIEL CASTANO, JERILYNN HORTON, CHI HUNG, and CHAN YING, Defendants. DECISION Co-Defendant-Ms. Jerilynn Horton, moves for summary judgment to dismiss the complaint under CPLR 321 1(a)(7) & (8) because of defective service of the complaint. After careful review of the motion papers, this Court hereby GRANTS Ms. Horton's motion, based on improper "nail and mail" service. Plaintiff-Mr. Sanchez, through counsel, argues that service of process upon Ms. Horton was proper under CPLR 308(4) [a/k/a "nail and mail" and that he exercised due diligence to effect service, even after a failed attempt by Mr. Felix De Los Santos, see De Los Santos Aff. at ff 3-5, because Mr. Sanchez was given permission by this Court to re-serve. See 22 Jul 2014 Decision. Furthermore, Mr. Sanchez contends that Ms. Horton's mere citations of law to support her argument that she was improperly served is insufficient to support her claim to dismiss the complaint. See Opp. at p. 4.! Ms. Horton, however, posits that there was no due diligence on Mr. Sanchez's part because the affidavit made no mention of the "next-door neighbor." See Tisman Aff. at Exh. E; see also Reply at [J] 10 & 13, and McCormack v. Goldstein, 204 AD2d 121, 122 (App Div, 1st Dept 1994) (where the court ' Ms. Whalen's Opposition has no page numbers or paragraphs. 1 held that delivery of papers to a doorperson instead of to the intended recipient at his/her actual dwelling unit does not constitute proper delivery). The due diligence component of CPLR 308(4) underscores the legislative preference for in-hand delivery to someone, whether it is the intended recipient or a person of suitable age and discretion [a/k/a "SAD person"). See Commentary C308:5 ["Affix and Mail" service], Vincent C. Alexander. Likewise, the due diligence requirement was not met if none of the attempts was made during a weekend. Spath v. Zack, 36 AD3d 410, 413 (App Diy, Ist Dept 2007). Here, although the Texas-based process server attested that he attempted service on Saturday, 27 September 2014, Mr. Sanchez failed to properly serve Ms. Horton, either via personal service [CPLR 308] or via mail [CPLR 312-a] because of the non-descript "next door neighbor" information? Simply stating "next door neighbor" in the process server's affidavit is insufficient to show due diligence. See Tisman Aff. at Exh. E. As such, Ms. Horton has valid grounds for her motion to dismiss because service of process is defective. Had service been properly effected, Ms. Horton could have appeared, based on CPLR 320(a) [“Defendant’s appearance”]. Since this is not the case, any other issues regarding breach of labor law and stay of EBTs will not be addressed. In sum, Movant's motion is GRANTED. There is no personal jurisdiction over Ms. Horton because service of process was improper. Any other ensuing issues such as Labor Law claims will therefore not be addressed. This constitutes the Decision and Order of this Court. Dated: September 9, 2015 aor Bronx, NY Hon. Fernando Tapia, J.S.C. ? This trip and fall accident happened on December 14, 2012, while Mr. Sanchez was tree-trimming under the direction of Defendant-Extra Space Storage Inc. See Tisman Memorandum of Law at pp. 2-3. 2