Preview
FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021
SUPREME COURT OF THE STATE OF NEW YORK
QUEENS COUNTY
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JOHN ORBE,
Plaintiff,
AFFIRMATION IN SUPPORT
-against- Index No.: 0700443/2019
HIGH FLYING B IRD, INC. d/b/a NYCHEVILLO-TTE,
NYCHEVILLO-TTE, MARCO G. ESPINOZA, “JOHN
DOE #1” and JOHN DOE #2, fictitious names for unknown
Employees of the Defendant HIGH FLYING B IRD, INC.
d/b/a NYCHEVILLO-TTE, and/or the Defendant
NYCHEVILLO-TTE.
Defendant.
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DANIEL E. O’NEILL, an attorney duly admitted to practice law in the
Courts of the State of New York, hereby affirms the following under the
penalties of perjury:
1. I am an attorney with the law firm of ONDROVIC, HURLEY &
PLATEK, PLLC, representing MARCO G. ESPINOZA, a defendant in the
above-entitled action and, as such, I am fully familiar with the facts and
circumstances underlying this litigation.
2. This Affirmation in Support is submitted in support of the
motion of MARCO G. ESPINOZA for an Order:
a. Dismissing the action as to defendant MARCO G.
ESPINOZA pursuant to CPLR 5015(a)(4) and CPLR
3211(a)(8) because this Court does not have jurisdiction
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over MARCO G. ESPINOZA; or, in the alternative,
b. Pursuant to CPLR 5015 and other applicable statutory and
case law, vacating the default entered against the
defendant MARCO G. ESPINOZA; and,
c. Issuing a Stay of the Inquest in this matter, now scheduled
for the time of trial; and,
d. For permission to appear and defend the defendant at the
Inquest; and,
e. To permit discovery to take place; or, in the further
alternative,
f. To conduct a Traverse Hearing to determine if service of
process was properly made upon the moving defendant.
I. THE CLAIMS AND CROSS-CLAIMS AGAINST MARCO G.
ESPINOZA MUST BE DISMISSED BECAUSE THIS COURT
DOES NOT HAVE JURISDICTION OVER HIM
3. As set forth in the Affidavit of MARCO G. ESPINOZA and in
plaintiff’s affidavits of service, MR. ESPINOZA was never
served with process in this matter. Therefore, this honorable
Court does not have jurisdiction over MR. ESPINOZA and
plaintiff’s claims and codefendant’s cross-claims must be
dismissed as a matter of law. (Annexed hereto as Exhibit
“A” is the Affidavit of MARCO G. ESPINOZA. Plaintiff’s
affidavits of service are referenced below.)
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a. FACTUAL AND PROCEDURAL BACKGROUND
4. Plaintiff’s unverified Complaint alleges that MARCO G.
ESPINOZA and the two JOHN DOE codefendants caused
injury to plaintiff while plaintiff “was lawfully standing outside
of the aforesaid bar/nightclub”. That bar/nightclub is alleged
to be codefendant HIGH FLYING BIRD, INC. d/b/a
NYCHEVILLO-TTE, NYCHEVILLO-TTE. Annexed hereto as
Exhibit “B” is plaintiff’s Summons and Complaint e-filed on
January 9, 2019; see par. 6, 39.
5. The unverified Complaint also alleges that MARCO G.
ESPINOZA was employed by the bar/nightclub or an outside
agency “in the capacity of a bouncer and/or security”.
(Exhibit “B”, par. 30-33.)
6. Codefendant HIGH FLYING BIRD, INC. d/b/a NYCHEVILLO-
TTE appeared via a Verified Answer to Verified Complaint
dated May 20, 2109 and e-filed on that same date; a copy of
which is annexed hereto as Exhibit “C”. The Answer
includes cross-claims against MR. ESPINOZA and the JOHN
DOE codefendants.
7. In addition, codefendant’s Answer denies that MARCO G.
ESPINOZA was an employee of HIGH FLYING BIRD, INC.
d/b/a NYCHEVILLO-TTE. (Exhibit “C”, see pp. 2 and 3 of
10; also see Exhibit “B”, par. 8, 22, 30.)
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8. On January 30, 2019, plaintiff’s counsel e-filed an Affidavit of
Service, dated January 23, 2019, concerning alleged service
of process on MARCO G. ESPINOZA, a copy of which is
annexed hereto as Exhibit “D”.
9. That Affidavit of Service states that on January 16, 2019 at
3:37 p.m., MARCO G. ESPINOZA was served with “Notice of
Electronic Filing Availability, Summons and Complaint” care
of (“C/O”):
“NYCHEVILLO-TTE 78-14 ROOSEVELT AVE
JACKSON HEIGHTS NY 11372”.
(Exhibit “D”.)
10. Service was not made personally upon MARCO G.
ESPINOZA, but upon a “CARLITO DOE (REFUSED FULL
NAME), CO-WORKER, a person of suitable age and
discretion.” (Exhibit “D”.)
11. The Affidavit of Service also states that on 01/28/2019 the
documents were mailed “to the said DEFENDANT at the above
address. That being the plaintiff of business of the
DEFENDANT.” (Exhibit “D”.)
12. Plaintiff’s counsel filed an Affidavit of Service regarding
service on codefendant NYCHEVILLO-TTE showing that
service was made at the same date and time as allegedly made
on MR. ESPINOZA. In addition, the same individual,
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“CARLITO ‘DOE’”, was served. Annexed hereto as Exhibit “E”
is an Affidavit of Service dated 01/22/2019.
13. Plaintiff filed a Notice of Motion for a default judgment against
MARCO G. ESPINOZA. The Notice of Motion was filed on
11/06/2019. Copies of the Notice of Motion, Affirmation in
Support, and exhibits “A” and “B” are annexed hereto as
Exhibit “F”. A copy of the Notice of Default, annexed to
plaintiff’s motion as exhibit “C”, is annexed hereto as Exhibit
“G”.
14. Plaintiff’s Notice of Default was mailed to the same address
listed on the Affidavit of Service, the address of NYCHEVILLO-
TTE. (Exhibit “G”; also see Exhibit “C”.)
15. However, MARCO G. ESPINOZA was never served with
plaintiff’s Notice of Default. (Exhibit “A”, par. 10.)
16. In addition, MR. ESPINOZA was never employed by HIGH
FLYING BIRD, INC. d/b/a NYCHEVILLO-TTE or
NYCHEVILLO-TTE. He never worked for either entity
through an outside agency, as plaintiff has alleged.
(Exhibit “A”, par. 4-8; see, Exhibit “B”, par. 30-33.)
17. Nor did MR. ESPINOZA ever work at a nightclub called NYC
Hevillo, which was located on Roosevelt Avenue, Jackson
Heights, at or near where the occurrence at issue allegedly
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took place. (Exhibit “A”, par. 4-8; Exhibit “B”, par. 6, 20,
30-39.)
18. Plaintiff’s default motion was granted. Annexed hereto as
Exhibit “”H” is the Court’s Order with Notice of Entry, e-filed
on 12/26/2019.
b. APPLICABLE STATUTORY AND CASE LAW
19. CPLR 5015(a)(4), “Relief from judgment or order”, states:
(a) On motion. The court which rendered a judgment or
order may relieve a party from it upon such terms as may
be just, on motion of any interested person with such
notice as the court may direct, upon the ground of:
* * * * *
4. lack of jurisdiction to render the judgment or order;”.
N.Y. C.P.L.R. 5015 (McKinney).
(https://www.westlaw.com/Document/NCB44C660987411D8819
EEA39B23BA0F7/View/FullText.html?transitionType=Default&co
ntextData=(sc.Default)&VR=3.0&RS=cblt1.0)
20. It is respectfully submitted that this Court lacks jurisdiction
over MARCO ESPINOZA because he was not served with
process. Because MR. ESPINOZA is sued in this action as
an individual, service was required to be effectuated
pursuant to CPLR 308.
21. However, plaintiff failed to establish that service was
appropriately made pursuant to the requirements of any of
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the subsections of CPLR 308. The McKinney’s Commentaries
summarizes the locations that an individual defendant can
be served at: “The delivery to a person of suitable age and
discretion can be made at any one of three possible
locations: defendant's actual place of business, actual
dwelling place or usual place of abode.” N.Y. C.P.L.R. 308
(McKinney Commentaries, C308:3.)
https://www.westlaw.com/Document/NCB17EA00987411D
8819EEA39B23BA0F7/View/FullText.html?transitionType=
Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.
22. Herein, plaintiff failed to serve MR. ESPINOZA at any
location. The Affidavit of Service states that service was
made at MR. ESPINOZA’s place of employment, the location
of the codefendant nightclub. (Exhibit “D”.) However, MR.
ESPINOZA was never employed or worked at that location.
(Exhibit “A”, par 4-8.)
23. CPLR 308 states, in full:
“Personal service upon a natural person shall be made
by any of the following methods:
1. by delivering the summons within the state to the
person to be served; or
2. by delivering the summons within the state to a
person of suitable age and discretion at the actual
place of business, dwelling place or usual place of
abode of the person to be served and by either mailing
the summons to the person to be served at his or her
last known residence or by mailing the summons by
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first class mail to the person to be served at his or her
actual place of business in an envelope bearing the
legend “personal and confidential” and not indicating
on the outside thereof, by return address or otherwise,
that the communication is from an attorney or
concerns an action against the person to be served,
such delivery and mailing to be effected within twenty
days of each other; proof of such service shall be filed
with the clerk of the court designated in the summons
within twenty days of either such delivery or mailing,
whichever is effected later; service shall be complete
ten days after such filing; proof of service shall identify
such person of suitable age and discretion and state
the date, time and place of service, except in
matrimonial actions where service hereunder may be
made pursuant to an order made in accordance with
the provisions of subdivision a of section two hundred
thirty-two of the domestic relations law; or
3. by delivering the summons within the state to the
agent for service of the person to be served as
designated under rule 318, except in matrimonial
actions where service hereunder may be made
pursuant to an order made in accordance with the
provisions of subdivision a of section two hundred
thirty-two of the domestic relations law;
4. where service under paragraphs one and two cannot
be made with due diligence, by affixing the summons
to the door of either the actual place of business,
dwelling place or usual place of abode within the state
of the person to be served and by either mailing the
summons to such person at his or her last known
residence or by mailing the summons by first class
mail to the person to be served at his or her actual
place of business in an envelope bearing the legend
“personal and confidential” and not indicating on the
outside thereof, by return address or otherwise, that
the communication is from an attorney or concerns an
action against the person to be served, such affixing
and mailing to be effected within twenty days of each
other; proof of such service shall be filed with the clerk
of the court designated in the summons within twenty
days of either such affixing or mailing, whichever is
effected later; service shall be complete ten days after
such filing, except in matrimonial actions where
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service hereunder may be made pursuant to an order
made in accordance with the provisions of subdivision
a of section two hundred thirty-two of the domestic
relations law;
5. in such manner as the court, upon motion without
notice, directs, if service is impracticable under
paragraphs one, two and four of this section.
6. For purposes of this section, “actual place of
business” shall include any location that the
defendant, through regular solicitation or
advertisement, has held out as its place of business.”
N.Y. C.P.L.R. 308 (McKinney).
24. There was no attempt to personally serve MR. ESPINOZA or
serve him at “dwelling place or usual place of abode”,
pursuant to CPLR 308(1), (2), (3). Nor did plaintiff move for
service to be made, “in such manner as the court, upon
motion without notice, directs”. CPLR 308(5).
25. Plaintiff only attempted service on MR. ESPINOZA’s
purported “actual place of business.” CPLR 308(2).
(Exhibits “D” and “G”.)
26. There is no evidence that plaintiff served MARCO ESPINOZA.
“For purposes of this section, ‘actual place of business shall
include any location that the defendant, through regular
solicitation or advertisement, has held out as its place of
business.” CPLR 308(6).
27. The Second Department has held that if service of process was
not properly made, then this Court has no jurisdiction over
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the defendant. Mayers v. Cadman Towers, Inc., 89 A.D.2d
844, 845, 453 N.Y.S.2d 25, 26 (2nd Dept. 1982) (“Defendant
correctly argues that, had service not been duly effected,
Special Term would have no jurisdiction over it and therefore
all further proceedings, including the motion for a default
judgment, would be absolute nullities”).
https://www.westlaw.com/Document/Iad6d724ad93711d9a
489ee624f1f6e1a/View/FullText.html?transitionType=Defaul
t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0
28. The Court may grant this motion although an Answer has
not been served nor has this motion being brought within
the time required pursuant to CPLR 3211. In other words,
the Court can still dismiss the action against MR. ESPINOZA
pursuant to CPLR 5015(a)(4). Miller v. Weyerhaeuser Co.,
179 Misc. 2d 471, 477, 685 N.Y.S.2d 393, 397 (Sup. Ct.
1999);
https://www.westlaw.com/Document/I5c185e55d98c11d98
ac8f235252e36df/View/FullText.html?transitionType=Defaul
t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 also see,
Gov't Emps. Ins. Co. v. Basedow, 28 A.D.3d 766, 767, 816
N.Y.S.2d 106, 108 (2nd Dept. 2006) (“Although American's
motion was technically untimely, ‘[f]ailing to recognize the
realities and adhering to the technicalities would simply
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undermine the speedy and inexpensive resolution of the
controversy’” (citing
Miller v. Weyerhaeuser Co., supra at 477, 685 N.Y.S.2d 39));
https://www.westlaw.com/Document/I8b13cb6bf7c111daa
2529ff4f933adbe/View/FullText.html?transitionType=Defaul
t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.
29. Plaintiff has the burden of proof to establish that service of
process was properly effectuated. Stewart v. Volkswagen of
Am., Inc., 81 N.Y.2d 203, 207, 613 N.E.2d 518, 521 (1993)
(“The incontestable starting proposition in cases of this kind
is that once jurisdiction and service of process are
questioned, plaintiffs have the burden of proving satisfaction
of statutory and due process prerequisites”);
https://www.westlaw.com/Document/I34f836adda1911d98
ac8f235252e36df/View/FullText.html?transitionType=Defaul
t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0. This
plaintiff has failed to do.
30. Therefore, service of process has not been effectuated
pursuant to any of the subsections of CPLR § 308.
31. MR. ESPINOZA has clearly set forth that he was not
employed by or worked at the codefendant’s business.
(Exhibit “A”.)
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32. Even if MARCO ESPINOZA had worked at the nightclub,
plaintiff has failed to demonstrate that the person who
allegedly accepted service was actually authorized to accept
service on MR. ESPINOZA’s behalf. Dorfman v. Leidner, 76
N.Y.2d 956, 958, 565 N.E.2d 472, 473 (1990) (“there was no
showing of a contemporaneous, express representation of
authority”);https://www.westlaw.com/Document/I7ad74ae9
dbdf11d98ac8f235252e36df/View/FullText.html?transitionT
ype=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.
33. The failure to deliver the summons in MR. ESPINOZA’s
presence was a failure to effectuate service pursuant to CPLR
308. Espy v. Giorlando, 85 A.D.2d 652, 653, 445 N.Y.S.2d
230, 232 (1981), aff'd, 56 N.Y.2d 640, 436 N.E.2d 193 (1982)
(“Delivery of the summons herein was not made in the
presence of the defendant doctor and, accordingly, was not
made in conformance with CPLR 308 (subd. 1).”);
https://www.westlaw.com/Document/I15758efad90511d98
ac8f235252e36df/View/FullText.html?transitionType=Defaul
t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0
34. The Affidavit of Service states that the person served refused
to provide his last name to the process server. (Exhibit “D”;
also see Exhibit “E”.)
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35. The Court of Appeals has held that that “Delivery of the
summonses and complaints to employees of the defendant
doctors did not effect authorized service under CPLR 308(1).
Its requirement that a summons be delivered ‘to the person
to be served’ has been applied in accordance with its plain
and literal language”. Dorfman v. Leidner, at 957, 473.
36. Again, even if MARCO ESPINOZA had worked at the
nightclub, service was not valid because his interests in this
litigation are adverse to the nightclub’s interests. “A person
is generally considered of suitable age and discretion if ‘the
nature of his/her relationship to the person to be served
makes it more likely than not that they will deliver process to
the named party.’” Martinez v. McSweeney, 41 Misc. 3d
1232(A), 981 N.Y.S.2d 636 (Sup. Ct. 2013), citing Bakht v.
Akhtar, 18 Misc.3d 78, 852 NYS2d 581) (unpublished
opinion, a copy of which is annexed hereto as Exhibit “I”);
Community Sch. Dist. No. 13 v. Goodman, 127 A.D.2d 837,
511 N.Y.S.2d 945, 946 (2nd Dept. 1987) (Special Term’s
dismissal of petition for failure to obtain personal
jurisdiction upheld where legal papers left with a non-party
whose interests “must be considered adverse to those of the
respondent, and as such it would be inappropriate for him to
act as the recipient of service for him”);
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https://www.westlaw.com/Document/I9bad21a3d93111d9
83e7e9deff98dc6f/View/FullText.html?transitionType=Defau
lt&contextData=(sc.Default)&VR=3.0&RS=cblt1.0
37. A review of the pleadings demonstrates that the codefendant
nightclub has interest adverse to MARCO ESPINOZA.
Codefendant has asserted cross-claims against MR.
ESPINOZA. In addition, MR. ESPINOZA has stated that he
did not work there. (Exhibit “A” and Exhibit “C”.)
38. As demonstrated in MR. ESPINOZA’s Affidavit and above,
service was not effectuated upon him because he was not
employed and/or worked at the location listed on the
affidavit of service. Even if MR. ESPINOZA had worked at
that location, further case law shows that plaintiff’s service
would still not have been proper.
39. The Court in Ascencio-Sutphen v. McDonald's Corp., 2007,
16 Misc.3d 184, 838 N.Y.S.2d 403 (Sup.Ct.Bronx Co.) held
that service was not effective where service was made at a
McDonald’s restaurant where the security guard was
assigned by his employer, a private security firm. The
restaurant was found not to be the security guard’s “actual
place of business”.
https://www.westlaw.com/Document/Ibbbd8aa42ae911dca
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f8dafd7ee2b8b26/View/FullText.html?transitionType=Defaul
t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0
40. Similarly, in the holding of Glasser v. Keller, 149 Misc. 2d
875, 567 N.Y.S.2d 981 (Sup. Ct. 1991), the Court held that
in a medical malpractice action against at doctor, service on
employees of a hospital where the doctor had privileges and
performed surgeries was insufficient. This was because the
hospital did not employ him and so did not constitute his
“actual place of business” for purposes of effecting service of
process.”
https://www.westlaw.com/Document/I2d333d32dbd511d9
83e7e9deff98dc6f/View/FullText.html?transitionType=Defau
lt&contextData=(sc.Default)&VR=3.0&RS=cblt1.0
41. Furthermore, even if the address was defendant’s “last know
residence”, service was not valid. Service was attempted
pursuant to CPLR § 308(4) because service could not be
effectuated pursuant to CPLR § 308(1) and/or (2).
42. In the instant matter, the plaintiff’s process server also
attempted service and, when that failed, the process server
attempted “nail and
Preview
FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 SUPREME COURT OF THE STATE OF NEW YORK QUEENS COUNTY -----------------------------------------------------------------------X JOHN ORBE, Plaintiff, AFFIRMATION IN SUPPORT -against- Index No.: 0700443/2019 HIGH FLYING B IRD, INC. d/b/a NYCHEVILLO-TTE, NYCHEVILLO-TTE, MARCO G. ESPINOZA, “JOHN DOE #1” and JOHN DOE #2, fictitious names for unknown Employees of the Defendant HIGH FLYING B IRD, INC. d/b/a NYCHEVILLO-TTE, and/or the Defendant NYCHEVILLO-TTE. Defendant. ---------------------------------------------------------------------X DANIEL E. O’NEILL, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am an attorney with the law firm of ONDROVIC, HURLEY & PLATEK, PLLC, representing MARCO G. ESPINOZA, a defendant in the above-entitled action and, as such, I am fully familiar with the facts and circumstances underlying this litigation. 2. This Affirmation in Support is submitted in support of the motion of MARCO G. ESPINOZA for an Order: a. Dismissing the action as to defendant MARCO G. ESPINOZA pursuant to CPLR 5015(a)(4) and CPLR 3211(a)(8) because this Court does not have jurisdiction 1 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 over MARCO G. ESPINOZA; or, in the alternative, b. Pursuant to CPLR 5015 and other applicable statutory and case law, vacating the default entered against the defendant MARCO G. ESPINOZA; and, c. Issuing a Stay of the Inquest in this matter, now scheduled for the time of trial; and, d. For permission to appear and defend the defendant at the Inquest; and, e. To permit discovery to take place; or, in the further alternative, f. To conduct a Traverse Hearing to determine if service of process was properly made upon the moving defendant. I. THE CLAIMS AND CROSS-CLAIMS AGAINST MARCO G. ESPINOZA MUST BE DISMISSED BECAUSE THIS COURT DOES NOT HAVE JURISDICTION OVER HIM 3. As set forth in the Affidavit of MARCO G. ESPINOZA and in plaintiff’s affidavits of service, MR. ESPINOZA was never served with process in this matter. Therefore, this honorable Court does not have jurisdiction over MR. ESPINOZA and plaintiff’s claims and codefendant’s cross-claims must be dismissed as a matter of law. (Annexed hereto as Exhibit “A” is the Affidavit of MARCO G. ESPINOZA. Plaintiff’s affidavits of service are referenced below.) 2 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 a. FACTUAL AND PROCEDURAL BACKGROUND 4. Plaintiff’s unverified Complaint alleges that MARCO G. ESPINOZA and the two JOHN DOE codefendants caused injury to plaintiff while plaintiff “was lawfully standing outside of the aforesaid bar/nightclub”. That bar/nightclub is alleged to be codefendant HIGH FLYING BIRD, INC. d/b/a NYCHEVILLO-TTE, NYCHEVILLO-TTE. Annexed hereto as Exhibit “B” is plaintiff’s Summons and Complaint e-filed on January 9, 2019; see par. 6, 39. 5. The unverified Complaint also alleges that MARCO G. ESPINOZA was employed by the bar/nightclub or an outside agency “in the capacity of a bouncer and/or security”. (Exhibit “B”, par. 30-33.) 6. Codefendant HIGH FLYING BIRD, INC. d/b/a NYCHEVILLO- TTE appeared via a Verified Answer to Verified Complaint dated May 20, 2109 and e-filed on that same date; a copy of which is annexed hereto as Exhibit “C”. The Answer includes cross-claims against MR. ESPINOZA and the JOHN DOE codefendants. 7. In addition, codefendant’s Answer denies that MARCO G. ESPINOZA was an employee of HIGH FLYING BIRD, INC. d/b/a NYCHEVILLO-TTE. (Exhibit “C”, see pp. 2 and 3 of 10; also see Exhibit “B”, par. 8, 22, 30.) 3 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 8. On January 30, 2019, plaintiff’s counsel e-filed an Affidavit of Service, dated January 23, 2019, concerning alleged service of process on MARCO G. ESPINOZA, a copy of which is annexed hereto as Exhibit “D”. 9. That Affidavit of Service states that on January 16, 2019 at 3:37 p.m., MARCO G. ESPINOZA was served with “Notice of Electronic Filing Availability, Summons and Complaint” care of (“C/O”): “NYCHEVILLO-TTE 78-14 ROOSEVELT AVE JACKSON HEIGHTS NY 11372”. (Exhibit “D”.) 10. Service was not made personally upon MARCO G. ESPINOZA, but upon a “CARLITO DOE (REFUSED FULL NAME), CO-WORKER, a person of suitable age and discretion.” (Exhibit “D”.) 11. The Affidavit of Service also states that on 01/28/2019 the documents were mailed “to the said DEFENDANT at the above address. That being the plaintiff of business of the DEFENDANT.” (Exhibit “D”.) 12. Plaintiff’s counsel filed an Affidavit of Service regarding service on codefendant NYCHEVILLO-TTE showing that service was made at the same date and time as allegedly made on MR. ESPINOZA. In addition, the same individual, 4 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 “CARLITO ‘DOE’”, was served. Annexed hereto as Exhibit “E” is an Affidavit of Service dated 01/22/2019. 13. Plaintiff filed a Notice of Motion for a default judgment against MARCO G. ESPINOZA. The Notice of Motion was filed on 11/06/2019. Copies of the Notice of Motion, Affirmation in Support, and exhibits “A” and “B” are annexed hereto as Exhibit “F”. A copy of the Notice of Default, annexed to plaintiff’s motion as exhibit “C”, is annexed hereto as Exhibit “G”. 14. Plaintiff’s Notice of Default was mailed to the same address listed on the Affidavit of Service, the address of NYCHEVILLO- TTE. (Exhibit “G”; also see Exhibit “C”.) 15. However, MARCO G. ESPINOZA was never served with plaintiff’s Notice of Default. (Exhibit “A”, par. 10.) 16. In addition, MR. ESPINOZA was never employed by HIGH FLYING BIRD, INC. d/b/a NYCHEVILLO-TTE or NYCHEVILLO-TTE. He never worked for either entity through an outside agency, as plaintiff has alleged. (Exhibit “A”, par. 4-8; see, Exhibit “B”, par. 30-33.) 17. Nor did MR. ESPINOZA ever work at a nightclub called NYC Hevillo, which was located on Roosevelt Avenue, Jackson Heights, at or near where the occurrence at issue allegedly 5 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 took place. (Exhibit “A”, par. 4-8; Exhibit “B”, par. 6, 20, 30-39.) 18. Plaintiff’s default motion was granted. Annexed hereto as Exhibit “”H” is the Court’s Order with Notice of Entry, e-filed on 12/26/2019. b. APPLICABLE STATUTORY AND CASE LAW 19. CPLR 5015(a)(4), “Relief from judgment or order”, states: (a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: * * * * * 4. lack of jurisdiction to render the judgment or order;”. N.Y. C.P.L.R. 5015 (McKinney). (https://www.westlaw.com/Document/NCB44C660987411D8819 EEA39B23BA0F7/View/FullText.html?transitionType=Default&co ntextData=(sc.Default)&VR=3.0&RS=cblt1.0) 20. It is respectfully submitted that this Court lacks jurisdiction over MARCO ESPINOZA because he was not served with process. Because MR. ESPINOZA is sued in this action as an individual, service was required to be effectuated pursuant to CPLR 308. 21. However, plaintiff failed to establish that service was appropriately made pursuant to the requirements of any of 6 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 the subsections of CPLR 308. The McKinney’s Commentaries summarizes the locations that an individual defendant can be served at: “The delivery to a person of suitable age and discretion can be made at any one of three possible locations: defendant's actual place of business, actual dwelling place or usual place of abode.” N.Y. C.P.L.R. 308 (McKinney Commentaries, C308:3.) https://www.westlaw.com/Document/NCB17EA00987411D 8819EEA39B23BA0F7/View/FullText.html?transitionType= Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0. 22. Herein, plaintiff failed to serve MR. ESPINOZA at any location. The Affidavit of Service states that service was made at MR. ESPINOZA’s place of employment, the location of the codefendant nightclub. (Exhibit “D”.) However, MR. ESPINOZA was never employed or worked at that location. (Exhibit “A”, par 4-8.) 23. CPLR 308 states, in full: “Personal service upon a natural person shall be made by any of the following methods: 1. by delivering the summons within the state to the person to be served; or 2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by 7 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; or 3. by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; 4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where 8 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; 5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section. 6. For purposes of this section, “actual place of business” shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.” N.Y. C.P.L.R. 308 (McKinney). 24. There was no attempt to personally serve MR. ESPINOZA or serve him at “dwelling place or usual place of abode”, pursuant to CPLR 308(1), (2), (3). Nor did plaintiff move for service to be made, “in such manner as the court, upon motion without notice, directs”. CPLR 308(5). 25. Plaintiff only attempted service on MR. ESPINOZA’s purported “actual place of business.” CPLR 308(2). (Exhibits “D” and “G”.) 26. There is no evidence that plaintiff served MARCO ESPINOZA. “For purposes of this section, ‘actual place of business shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.” CPLR 308(6). 27. The Second Department has held that if service of process was not properly made, then this Court has no jurisdiction over 9 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 the defendant. Mayers v. Cadman Towers, Inc., 89 A.D.2d 844, 845, 453 N.Y.S.2d 25, 26 (2nd Dept. 1982) (“Defendant correctly argues that, had service not been duly effected, Special Term would have no jurisdiction over it and therefore all further proceedings, including the motion for a default judgment, would be absolute nullities”). https://www.westlaw.com/Document/Iad6d724ad93711d9a 489ee624f1f6e1a/View/FullText.html?transitionType=Defaul t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 28. The Court may grant this motion although an Answer has not been served nor has this motion being brought within the time required pursuant to CPLR 3211. In other words, the Court can still dismiss the action against MR. ESPINOZA pursuant to CPLR 5015(a)(4). Miller v. Weyerhaeuser Co., 179 Misc. 2d 471, 477, 685 N.Y.S.2d 393, 397 (Sup. Ct. 1999); https://www.westlaw.com/Document/I5c185e55d98c11d98 ac8f235252e36df/View/FullText.html?transitionType=Defaul t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 also see, Gov't Emps. Ins. Co. v. Basedow, 28 A.D.3d 766, 767, 816 N.Y.S.2d 106, 108 (2nd Dept. 2006) (“Although American's motion was technically untimely, ‘[f]ailing to recognize the realities and adhering to the technicalities would simply 10 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 undermine the speedy and inexpensive resolution of the controversy’” (citing Miller v. Weyerhaeuser Co., supra at 477, 685 N.Y.S.2d 39)); https://www.westlaw.com/Document/I8b13cb6bf7c111daa 2529ff4f933adbe/View/FullText.html?transitionType=Defaul t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0. 29. Plaintiff has the burden of proof to establish that service of process was properly effectuated. Stewart v. Volkswagen of Am., Inc., 81 N.Y.2d 203, 207, 613 N.E.2d 518, 521 (1993) (“The incontestable starting proposition in cases of this kind is that once jurisdiction and service of process are questioned, plaintiffs have the burden of proving satisfaction of statutory and due process prerequisites”); https://www.westlaw.com/Document/I34f836adda1911d98 ac8f235252e36df/View/FullText.html?transitionType=Defaul t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0. This plaintiff has failed to do. 30. Therefore, service of process has not been effectuated pursuant to any of the subsections of CPLR § 308. 31. MR. ESPINOZA has clearly set forth that he was not employed by or worked at the codefendant’s business. (Exhibit “A”.) 11 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 32. Even if MARCO ESPINOZA had worked at the nightclub, plaintiff has failed to demonstrate that the person who allegedly accepted service was actually authorized to accept service on MR. ESPINOZA’s behalf. Dorfman v. Leidner, 76 N.Y.2d 956, 958, 565 N.E.2d 472, 473 (1990) (“there was no showing of a contemporaneous, express representation of authority”);https://www.westlaw.com/Document/I7ad74ae9 dbdf11d98ac8f235252e36df/View/FullText.html?transitionT ype=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0. 33. The failure to deliver the summons in MR. ESPINOZA’s presence was a failure to effectuate service pursuant to CPLR 308. Espy v. Giorlando, 85 A.D.2d 652, 653, 445 N.Y.S.2d 230, 232 (1981), aff'd, 56 N.Y.2d 640, 436 N.E.2d 193 (1982) (“Delivery of the summons herein was not made in the presence of the defendant doctor and, accordingly, was not made in conformance with CPLR 308 (subd. 1).”); https://www.westlaw.com/Document/I15758efad90511d98 ac8f235252e36df/View/FullText.html?transitionType=Defaul t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 34. The Affidavit of Service states that the person served refused to provide his last name to the process server. (Exhibit “D”; also see Exhibit “E”.) 12 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 35. The Court of Appeals has held that that “Delivery of the summonses and complaints to employees of the defendant doctors did not effect authorized service under CPLR 308(1). Its requirement that a summons be delivered ‘to the person to be served’ has been applied in accordance with its plain and literal language”. Dorfman v. Leidner, at 957, 473. 36. Again, even if MARCO ESPINOZA had worked at the nightclub, service was not valid because his interests in this litigation are adverse to the nightclub’s interests. “A person is generally considered of suitable age and discretion if ‘the nature of his/her relationship to the person to be served makes it more likely than not that they will deliver process to the named party.’” Martinez v. McSweeney, 41 Misc. 3d 1232(A), 981 N.Y.S.2d 636 (Sup. Ct. 2013), citing Bakht v. Akhtar, 18 Misc.3d 78, 852 NYS2d 581) (unpublished opinion, a copy of which is annexed hereto as Exhibit “I”); Community Sch. Dist. No. 13 v. Goodman, 127 A.D.2d 837, 511 N.Y.S.2d 945, 946 (2nd Dept. 1987) (Special Term’s dismissal of petition for failure to obtain personal jurisdiction upheld where legal papers left with a non-party whose interests “must be considered adverse to those of the respondent, and as such it would be inappropriate for him to act as the recipient of service for him”); 13 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 https://www.westlaw.com/Document/I9bad21a3d93111d9 83e7e9deff98dc6f/View/FullText.html?transitionType=Defau lt&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 37. A review of the pleadings demonstrates that the codefendant nightclub has interest adverse to MARCO ESPINOZA. Codefendant has asserted cross-claims against MR. ESPINOZA. In addition, MR. ESPINOZA has stated that he did not work there. (Exhibit “A” and Exhibit “C”.) 38. As demonstrated in MR. ESPINOZA’s Affidavit and above, service was not effectuated upon him because he was not employed and/or worked at the location listed on the affidavit of service. Even if MR. ESPINOZA had worked at that location, further case law shows that plaintiff’s service would still not have been proper. 39. The Court in Ascencio-Sutphen v. McDonald's Corp., 2007, 16 Misc.3d 184, 838 N.Y.S.2d 403 (Sup.Ct.Bronx Co.) held that service was not effective where service was made at a McDonald’s restaurant where the security guard was assigned by his employer, a private security firm. The restaurant was found not to be the security guard’s “actual place of business”. https://www.westlaw.com/Document/Ibbbd8aa42ae911dca 14 of 24 FILED: QUEENS COUNTY CLERK 04/16/2021 11:08 AM INDEX NO. 700443/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/16/2021 f8dafd7ee2b8b26/View/FullText.html?transitionType=Defaul t&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 40. Similarly, in the holding of Glasser v. Keller, 149 Misc. 2d 875, 567 N.Y.S.2d 981 (Sup. Ct. 1991), the Court held that in a medical malpractice action against at doctor, service on employees of a hospital where the doctor had privileges and performed surgeries was insufficient. This was because the hospital did not employ him and so did not constitute his “actual place of business” for purposes of effecting service of process.” https://www.westlaw.com/Document/I2d333d32dbd511d9 83e7e9deff98dc6f/View/FullText.html?transitionType=Defau lt&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 41. Furthermore, even if the address was defendant’s “last know residence”, service was not valid. Service was attempted pursuant to CPLR § 308(4) because service could not be effectuated pursuant to CPLR § 308(1) and/or (2). 42. In the instant matter, the plaintiff’s process server also attempted service and, when that failed, the process server attempted “nail and