Preview
FILED: KINGS COUNTY CLERK 07/01/2020 01:53 PM INDEX NO. 527281/2019
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/01/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Index No. 527281/19
RICKIE BLACKMAN,
Plaintiff, NOTICE OF MOTION
-against-
NEW YORK UNIVERSITY and TURNER
CONSTRUCTION COMPANY,
Defendants.
PLEASE TAKE NOTICE, that upon the annexed affirmation of Andreas Geroulakis
13t
dated the day of July, 2020, the exhibits annexed hereto, and upon all the pleadings and
proceedings heretofore had herein, the undersigned will move this Court at an IAS Part of the
Supreme Court, Kings County Courthouse located at 360 Adams Street, Brooklyn, New York
11201, on July 14, 2020 at 9:30 a.m. in the forenoon of that day or as soon thereafter as counsel
can be heard for an Order (i) pursuant to CPLR 306-b extending plaintiff's time to serve the
named defendant NEW YORK UNIVERSITY beyond 120 days from filing; and (ii) pursuant to
CPLR 308(5) permitting alternate service on defendant NEW YORK UNIVERSITY,
specifically permitting plaintiff to serve NEW YORK UNIVERSITY, 70 Washington Square
South, New York, NY 10012, Office of the General Counsel by first class mail, together with
such relief this Court deems, just, equitable and proper.
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Dated: New York, New York
June 30. 2020
GEROULAKIS LAW, P.C.
By:
Andreas Geroulakis
Attorneys for Plaintiff
Seven Penn Plaza
7th
370 Avenue, Suite 720
New York, NY 10001
Tel: (212) 323-6999
TO:
NEW YORK UNIVERSITY
70 Washington Square South
New York. NY 10012
Office of the General Counsel
TURNER CONSTRUCTION COMPANY
I11 Eighth Avenue
New York, NY 10011
TURNER CONSTRUCTION COMPANY
6th
375 Hudson Street, FlOOr
New York, NY 10011
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Index No. 527281/19
RICKIE BLACKMAN,
Plaintiff, AFFIRMATION IN SUPPORT
-against-
NEW YORK UNIVERSITY and TURNER
CONSTRUCTION COMPANY,
Defendants.
ANDREAS GEROULAKIS, an attorney admitted to practice in the State of New
York, affirms the following under the penalties of perjury:
1. I am a member of GEROULAKIS LAW, P.C., attorneys of record for
RICKIE BLACKMAN (hereinafter "plaintiff"), and as such I am thoroughly conversant
with the facts and circumstances herein based upon my review of the contents of the file,
including all prior proceedings, maintained in my office.
2. I submit this affirmation in support of plaintiff's motion seeking an Order
(i) pursuant to CPLR 306-b extending plaintiff's time to serve the named defendant NEW
YORK UNIVERSITY beyond 120 days from filing; and (ii) pursuant to CPLR 308(5)
permitting alternate service on defendant NEW YORK UNIVERSITY, specifically
permitting plaintiff to serve by first class mail NEW YORK UNIVERSITY, 70
Washington Square South, New York, NY 10012 Office of the General Counsel.
FACTUALBACKGROUND
3. On or about December 16, 2019 the plaintiff, by filing a Summons and
Verified Complaint, duly commenced this action against the defendants NEW YORK
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UNIVERSITY and TURNER CONSTRUCTION COMPANY to recover for serious
injuries he sustained on November 8, 2019 in a work related accident occurring on a
construction site owned by the defendant NEW YORK UNIVERSITY. Annexed hereto
"A"
as Exhibit is a copy of the Summons and Verified Complaint.
4. The defendant TURNER CONSTRUCTION COMPANY who was the
General Contractor on this project was duly served via Secretary of State on February 18,
"B"
2020. Annexed hereto as Exhibit is a copy of the affidavit of service. Additionally,
the defendant TURNER CONSTRUCTION COMPANY was mailed a copy of the
Summons and Verified Complaint pursuant to CPLR 3215(g)(4)(ii). Annexed hereto as
"C"
Exhibit is a Notice and Affirmation pursuant to CPLR 3215(g)(4)(ii). Parenthetically,
the defendant TURNER CONSTRUCTION COMPANY is in default.
5. With regard to the defendant NEW YORK UNIVERSITY, service upon the
Secretary of State was not conducive. There are multiple entities with NEW YORK
UNIVERSITY in the name. However, seemingly none of them were the correct one--the
University itself. Thus, my process server attempted to serve the defendant NEW YORK
UNIVERSITY, at its General Counsel's Office. Service was attempted immediately after
a moderate lift of the COVID-19 stay, specifically on June 8, 2020. Understandably, no
- "D"
one was the location due presumably due to precautions. Annexed hereto as Exhibit
is a copy of the affidavit of attempt.
6. Additionally, on June 8, 2020, Bridget Camelino, an account manager of
PM Legal, LLC the process serving agency your affirmant retained contacted the defendant
"E"
NEW YORK UNIVERSITY's general counsel's office. Annexed hereto as Exhibit is
a copy of Mrs. Camelino's Affidavit. Therein, Mrs. Camelino avers that she reviewed an
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e-mail concerning service on NEW YORK UNIVERSITY; also, she avers that she spoke
"
to an agent named Brittany Schepp-Wong who stated 'if you are trying to serve a
summons and complaint, then you would need to use the alternative methods of service
(i.e. methods that do not involve in-person service) that are authorized by law. I cannot
provide you with advice and counsel on what methods may be valid or not. We are not
email.'"
accepting summonses and complaints by
ARGUMENT
IT IS RESPECTFULLY SUBMITTED THAT THIS COURT SHOULD GRANT
PLAINTIFF AN EXTENSION OF TIME TO SERVE HIS SUMMONS AND
COMPLAINT AS GOOD CAUSE IS SHOWN AND IT IS IN THE INTEREST OF
JUSTICE
Pursuant to CPLR 306-b a Court can extend the time to serve a summons and
justice...."
complaint "...upon good cause shown or in the interest of CPLR 306-b.
cause"
Courts will grant such extension where plaintiff meets either the "good standard
justice"
g the "interest of standard. (Leader v Maroney, Ponzini & Spencer, 97 NY2d
95 [2001]). Here, it is respectfully submitted that plaintiff meets either standard.
1. Plaintiff has demonstrated good cause under CPLR 306-b
Good cause is demonstrated when plaintiff made reasonably diligent efforts to
effect service within the 120 day period subsequent to filing. (Wilmington Sav. Fund
Socy., FSB v James, 174 AD3d 835 [2d Dept 2019]). While failure to attempt service at
all will not demonstrate good cause-good cause may exist where the failure to
effectuate service was due to circumstances out of plaintiff's control. (M. at 837).
Here, plaintiff has demonstrated good cause. Plaintiff promptly sent his Summons
and Verified Complaint out to a licensed process serving agency. Unfortunately, and
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beyond the circumstances in plaintiff s control, the COVID-19 stay took effect during the
statutory period in which plaintiff had time to serve his complaint. Upon the first
reasonable availability to effectuate service, specifically on June 8, 2020, plaintiff s
process server attempted to serve the Summons and Verified Complaint as evidenced by
the affidavit of attempt, but no person was at the defendant entity. There was additional
follow-up with the General Counsel's Office of the defendant entity by the process
serving agency's account manager. As evidenced, by the content of the account
managers affidavit there is no way to effectuate in face personal service.
2. It is in the interest of justice under CPLR 306-b to extend plaintiff s time to serve
his summons and complaint
In contrast to the reasonable diligence standard the Court may consider diligence
but need not necessarily. Courts can look at a variety of factors including but not limited
to; expiration of the statute of limitations, the meritorious nature of the cause of action,
the length of delay in service, the promptness of a plaintiff s application extension of
time, and prejudice to defendant. (Leader, 97 NY2d at 105-106).
Here, plaintiff has demonstrated that it is in the interest of justice to extend the
120 service period. As elucidated above, your affirmant engaged in reasonably diligent
efforts to effectuate timely service. There was no length in delay in service; rather
unfortunately, the COVID-19 stay intervened in the statutory period for plaintiff to
effectuate service. This unfortunate condition is certainly a matter beyond anyone's
control. The instant motion has been made expeditiously. It has been less then one
month since attempted service has been made. There is absolutely no prejudice to the
defendant in granting this application as the statute of limitations on this action has over
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two years to expire. Further, as evidenced by the affidavit of Mrs. Camelino, and by
virtue of service on the co-defendants, the defendant is on notice of this action. The
claim is meritorious as can be gauged from the annexed complaint.
IT IS RESPECTFULLY SUBMITTED THAT THIS COURT SHOULD GRANT
PLAINTIFF THE ALTERNATE METHOD OF SERVICE REQUESTED
Courts will permit service under CPLR 308(5) when all other methods provided
"impracticable."
by the statute are Notably, this is a less stringent standard then "due
diligence"
under CPLR 308(4). "That is, to meet the standard on impracticability does
not require satisfying due diligence, or even showing that actual prior attempts to serve a
undertaken."
party under each and every method provided in the statute have been (Kelly
v Lewis, 220 AD2d 485 [2d Dept 1995]).
Here, mailing the Summons and Verified Complaint to the defendant NEW
YORK UNIVERSITY's General Counsel's Office, is the most practical method of
service. As the Court is aware, we are in the wake of a pandemic and Universities are not
likely to open to the general public any time soon. The affidavit of attempt signed by
plaintiff's process server clearly indicates that "no one was around due to the
coronavirus."
I believe it safe to assume that utilizing the due diligence standard would
be futile during these times. Further, as evidenced by the conversation between Mrs.
Camelino and the defendant's General Counsel's office, it is clear they have notice of an
action, and it is further clear that they are amenable only to service methods that avoid
face-to-face contacts.
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WHEREFORE, it is respectfully requested that the relief sought in plaintiff's
motion be granted in its entirety; namely an Order (i) pursuant to CPLR 306-b extending
plaintiff's time to serve the named defendant NEW YORK UNIVERSITY beyond 120
days from filing; and (ii) pursuant to CPLR 308(5) permitting alternate service on
defendant NEW YORK UNIVERSITY, specifically permitting plaintiff to serve by first
class mail NEW YORK UNIVERSITY, 70 Washington Square South, New York, NY
10012 Office of the General Counsel, together with such further relief this Court deems
just, proper and equitable.
Dated: New York, New York
July 1, 2020
Andreas Geroulakis
GEROULAKIS LAW, P.C.
Attorneys for Plaintiff
Seven Penn Plaza
7th
370 Avenue, Ste. 720
New York, NY 10001
Tel: (212) 323-6999
TO:
NEW YORK UNIVERSITY
70 Washington Square South
New York, NY 10012
Office of the General Counsel
TURNER CONSTRUCTION COMPANY
111 Eighth Avenue
New York, NY 10011
TURNER CONSTRUCTION COMPANY
6th
375 Hudson Street, FlOOr
New York, NY 10011
8 of 8
Preview
FILED: KINGS COUNTY CLERK 07/01/2020 01:53 PM INDEX NO. 527281/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/01/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No. 527281/19 RICKIE BLACKMAN, Plaintiff, NOTICE OF MOTION -against- NEW YORK UNIVERSITY and TURNER CONSTRUCTION COMPANY, Defendants. PLEASE TAKE NOTICE, that upon the annexed affirmation of Andreas Geroulakis 13t dated the day of July, 2020, the exhibits annexed hereto, and upon all the pleadings and proceedings heretofore had herein, the undersigned will move this Court at an IAS Part of the Supreme Court, Kings County Courthouse located at 360 Adams Street, Brooklyn, New York 11201, on July 14, 2020 at 9:30 a.m. in the forenoon of that day or as soon thereafter as counsel can be heard for an Order (i) pursuant to CPLR 306-b extending plaintiff's time to serve the named defendant NEW YORK UNIVERSITY beyond 120 days from filing; and (ii) pursuant to CPLR 308(5) permitting alternate service on defendant NEW YORK UNIVERSITY, specifically permitting plaintiff to serve NEW YORK UNIVERSITY, 70 Washington Square South, New York, NY 10012, Office of the General Counsel by first class mail, together with such relief this Court deems, just, equitable and proper. 1 of 8 FILED: KINGS COUNTY CLERK 07/01/2020 01:53 PM INDEX NO. 527281/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/01/2020 Dated: New York, New York June 30. 2020 GEROULAKIS LAW, P.C. By: Andreas Geroulakis Attorneys for Plaintiff Seven Penn Plaza 7th 370 Avenue, Suite 720 New York, NY 10001 Tel: (212) 323-6999 TO: NEW YORK UNIVERSITY 70 Washington Square South New York. NY 10012 Office of the General Counsel TURNER CONSTRUCTION COMPANY I11 Eighth Avenue New York, NY 10011 TURNER CONSTRUCTION COMPANY 6th 375 Hudson Street, FlOOr New York, NY 10011 2 of 8 FILED: KINGS COUNTY CLERK 07/01/2020 01:53 PM INDEX NO. 527281/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/01/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No. 527281/19 RICKIE BLACKMAN, Plaintiff, AFFIRMATION IN SUPPORT -against- NEW YORK UNIVERSITY and TURNER CONSTRUCTION COMPANY, Defendants. ANDREAS GEROULAKIS, an attorney admitted to practice in the State of New York, affirms the following under the penalties of perjury: 1. I am a member of GEROULAKIS LAW, P.C., attorneys of record for RICKIE BLACKMAN (hereinafter "plaintiff"), and as such I am thoroughly conversant with the facts and circumstances herein based upon my review of the contents of the file, including all prior proceedings, maintained in my office. 2. I submit this affirmation in support of plaintiff's motion seeking an Order (i) pursuant to CPLR 306-b extending plaintiff's time to serve the named defendant NEW YORK UNIVERSITY beyond 120 days from filing; and (ii) pursuant to CPLR 308(5) permitting alternate service on defendant NEW YORK UNIVERSITY, specifically permitting plaintiff to serve by first class mail NEW YORK UNIVERSITY, 70 Washington Square South, New York, NY 10012 Office of the General Counsel. FACTUALBACKGROUND 3. On or about December 16, 2019 the plaintiff, by filing a Summons and Verified Complaint, duly commenced this action against the defendants NEW YORK 3 of 8 FILED: KINGS COUNTY CLERK 07/01/2020 01:53 PM INDEX NO. 527281/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/01/2020 UNIVERSITY and TURNER CONSTRUCTION COMPANY to recover for serious injuries he sustained on November 8, 2019 in a work related accident occurring on a construction site owned by the defendant NEW YORK UNIVERSITY. Annexed hereto "A" as Exhibit is a copy of the Summons and Verified Complaint. 4. The defendant TURNER CONSTRUCTION COMPANY who was the General Contractor on this project was duly served via Secretary of State on February 18, "B" 2020. Annexed hereto as Exhibit is a copy of the affidavit of service. Additionally, the defendant TURNER CONSTRUCTION COMPANY was mailed a copy of the Summons and Verified Complaint pursuant to CPLR 3215(g)(4)(ii). Annexed hereto as "C" Exhibit is a Notice and Affirmation pursuant to CPLR 3215(g)(4)(ii). Parenthetically, the defendant TURNER CONSTRUCTION COMPANY is in default. 5. With regard to the defendant NEW YORK UNIVERSITY, service upon the Secretary of State was not conducive. There are multiple entities with NEW YORK UNIVERSITY in the name. However, seemingly none of them were the correct one--the University itself. Thus, my process server attempted to serve the defendant NEW YORK UNIVERSITY, at its General Counsel's Office. Service was attempted immediately after a moderate lift of the COVID-19 stay, specifically on June 8, 2020. Understandably, no - "D" one was the location due presumably due to precautions. Annexed hereto as Exhibit is a copy of the affidavit of attempt. 6. Additionally, on June 8, 2020, Bridget Camelino, an account manager of PM Legal, LLC the process serving agency your affirmant retained contacted the defendant "E" NEW YORK UNIVERSITY's general counsel's office. Annexed hereto as Exhibit is a copy of Mrs. Camelino's Affidavit. Therein, Mrs. Camelino avers that she reviewed an 4 of 8 FILED: KINGS COUNTY CLERK 07/01/2020 01:53 PM INDEX NO. 527281/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/01/2020 e-mail concerning service on NEW YORK UNIVERSITY; also, she avers that she spoke " to an agent named Brittany Schepp-Wong who stated 'if you are trying to serve a summons and complaint, then you would need to use the alternative methods of service (i.e. methods that do not involve in-person service) that are authorized by law. I cannot provide you with advice and counsel on what methods may be valid or not. We are not email.'" accepting summonses and complaints by ARGUMENT IT IS RESPECTFULLY SUBMITTED THAT THIS COURT SHOULD GRANT PLAINTIFF AN EXTENSION OF TIME TO SERVE HIS SUMMONS AND COMPLAINT AS GOOD CAUSE IS SHOWN AND IT IS IN THE INTEREST OF JUSTICE Pursuant to CPLR 306-b a Court can extend the time to serve a summons and justice...." complaint "...upon good cause shown or in the interest of CPLR 306-b. cause" Courts will grant such extension where plaintiff meets either the "good standard justice" g the "interest of standard. (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). Here, it is respectfully submitted that plaintiff meets either standard. 1. Plaintiff has demonstrated good cause under CPLR 306-b Good cause is demonstrated when plaintiff made reasonably diligent efforts to effect service within the 120 day period subsequent to filing. (Wilmington Sav. Fund Socy., FSB v James, 174 AD3d 835 [2d Dept 2019]). While failure to attempt service at all will not demonstrate good cause-good cause may exist where the failure to effectuate service was due to circumstances out of plaintiff's control. (M. at 837). Here, plaintiff has demonstrated good cause. Plaintiff promptly sent his Summons and Verified Complaint out to a licensed process serving agency. Unfortunately, and 5 of 8 FILED: KINGS COUNTY CLERK 07/01/2020 01:53 PM INDEX NO. 527281/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/01/2020 beyond the circumstances in plaintiff s control, the COVID-19 stay took effect during the statutory period in which plaintiff had time to serve his complaint. Upon the first reasonable availability to effectuate service, specifically on June 8, 2020, plaintiff s process server attempted to serve the Summons and Verified Complaint as evidenced by the affidavit of attempt, but no person was at the defendant entity. There was additional follow-up with the General Counsel's Office of the defendant entity by the process serving agency's account manager. As evidenced, by the content of the account managers affidavit there is no way to effectuate in face personal service. 2. It is in the interest of justice under CPLR 306-b to extend plaintiff s time to serve his summons and complaint In contrast to the reasonable diligence standard the Court may consider diligence but need not necessarily. Courts can look at a variety of factors including but not limited to; expiration of the statute of limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff s application extension of time, and prejudice to defendant. (Leader, 97 NY2d at 105-106). Here, plaintiff has demonstrated that it is in the interest of justice to extend the 120 service period. As elucidated above, your affirmant engaged in reasonably diligent efforts to effectuate timely service. There was no length in delay in service; rather unfortunately, the COVID-19 stay intervened in the statutory period for plaintiff to effectuate service. This unfortunate condition is certainly a matter beyond anyone's control. The instant motion has been made expeditiously. It has been less then one month since attempted service has been made. There is absolutely no prejudice to the defendant in granting this application as the statute of limitations on this action has over 6 of 8 FILED: KINGS COUNTY CLERK 07/01/2020 01:53 PM INDEX NO. 527281/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/01/2020 two years to expire. Further, as evidenced by the affidavit of Mrs. Camelino, and by virtue of service on the co-defendants, the defendant is on notice of this action. The claim is meritorious as can be gauged from the annexed complaint. IT IS RESPECTFULLY SUBMITTED THAT THIS COURT SHOULD GRANT PLAINTIFF THE ALTERNATE METHOD OF SERVICE REQUESTED Courts will permit service under CPLR 308(5) when all other methods provided "impracticable." by the statute are Notably, this is a less stringent standard then "due diligence" under CPLR 308(4). "That is, to meet the standard on impracticability does not require satisfying due diligence, or even showing that actual prior attempts to serve a undertaken." party under each and every method provided in the statute have been (Kelly v Lewis, 220 AD2d 485 [2d Dept 1995]). Here, mailing the Summons and Verified Complaint to the defendant NEW YORK UNIVERSITY's General Counsel's Office, is the most practical method of service. As the Court is aware, we are in the wake of a pandemic and Universities are not likely to open to the general public any time soon. The affidavit of attempt signed by plaintiff's process server clearly indicates that "no one was around due to the coronavirus." I believe it safe to assume that utilizing the due diligence standard would be futile during these times. Further, as evidenced by the conversation between Mrs. Camelino and the defendant's General Counsel's office, it is clear they have notice of an action, and it is further clear that they are amenable only to service methods that avoid face-to-face contacts. 7 of 8 FILED: KINGS COUNTY CLERK 07/01/2020 01:53 PM INDEX NO. 527281/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/01/2020 WHEREFORE, it is respectfully requested that the relief sought in plaintiff's motion be granted in its entirety; namely an Order (i) pursuant to CPLR 306-b extending plaintiff's time to serve the named defendant NEW YORK UNIVERSITY beyond 120 days from filing; and (ii) pursuant to CPLR 308(5) permitting alternate service on defendant NEW YORK UNIVERSITY, specifically permitting plaintiff to serve by first class mail NEW YORK UNIVERSITY, 70 Washington Square South, New York, NY 10012 Office of the General Counsel, together with such further relief this Court deems just, proper and equitable. Dated: New York, New York July 1, 2020 Andreas Geroulakis GEROULAKIS LAW, P.C. Attorneys for Plaintiff Seven Penn Plaza 7th 370 Avenue, Ste. 720 New York, NY 10001 Tel: (212) 323-6999 TO: NEW YORK UNIVERSITY 70 Washington Square South New York, NY 10012 Office of the General Counsel TURNER CONSTRUCTION COMPANY 111 Eighth Avenue New York, NY 10011 TURNER CONSTRUCTION COMPANY 6th 375 Hudson Street, FlOOr New York, NY 10011 8 of 8