Jeremiah Johnson-El, Plaintiff(s) v. LLC DBA (2026)

Upon the foregoing cited papers, and upon oral argument had on June 9, 2026, the Decision/ Order on the plaintiff's motion for "Summary Judgment" (in effect Default Judgment) and defendant's cross-motion to dismiss is as follows:

FACTS OF THE CASE

On or about January 16, 2026, plaintiff filed the within action alleging wrongful termination, premised upon alleged discrimination based upon creed, race, gender, etc. Defendants stated in their papers that Johnson-El was briefly employed with them as a Fire Guard on May 17, 2024, for approximately four (4) months, and that he was terminated for cause, to wit; for abandoning his post, using obscene and harassing language in workplace, etc.

Following his termination, plaintiff filed a complaint with New York State Division of Human Rights ("NYSDHR"), on October 21, 2024, claiming discrimination based on gender, religion, and national origin in violation of NYS Human Rights Law and Title VII of the Civil Rights Act. Defendants have since responded  ¹ , but the Division has not yet issued a decision, and the matter remains pending. The court notes that plaintiff's within claims are identical to his NYSDHR claims, and that both stem from the termination of his employment with defendants.

Process Service

Defendants move to dismiss the case for alleged lack of proper service. Plaintiff's affidavit of service alleges that service was effectuated upon defendant Overwatch Services, LLC d/b/a City Safe Partners ("Overwatch") on February 12, 2026, by personally delivering same to an employee of the company by the name of 'Jean' at the company's alleged location of 230 West 135 St, New York, NY 10030. That affidavit of service was filed on February 13, 2026.

On March 11, 2026, plaintiff filed another document he called "Affidavit — Amended and Supplemental Pleadings" wherein he purported to amend that affidavit of service by reference, to include the names of the other two defendants, Jordan West and Soyini Chan Shue, as being also served on that day, time and location as the corporate defendant, Overwatch, which read verbatim in pertinent part:

The Process Server Christopher Mungin-Bey Served documents and made a defect (sic) error when submitting to the courts of not adding two parties in the matter of Jorden West; Soyini Chan Shue with Overwatch services LLC/DBA City Safe Partners. This Affidavit is a correction to parties served on February 12th 2026 at 12:41PM. Served to JEAN (Front Desk Receptionist) of Overwatch services LLC/DBA City Safe Partners.

Thus, rather than file an amended affidavit of service, plaintiff files this affidavit (by his process server) purportedly amending his one and only filed affidavit of service, by reference. In this affidavit of service by reference, the process server, Christopher Mungin-Bey, who did not include his process server's license number, if any, listed the address of service for all three defendants as 2311 Adam Clayton Powell Blvd, New York, NY 10030. This address is different from the alleged service address contained in the affidavit of service he is trying to amend by reference. Further, there is no evidence that defendant Overwatch designated 'Jean' as an agent upon whom service on it may be made. See CPLR § 311.

The court finds that this discrepancy renders process service upon Overwatch defective. This is in addition to several other defects, including but not limited to attempting to amend an affidavit of service by referencing the intended amendment in another affidavit, etc.

With regards to the two individual defendants, plaintiff did not produce any affidavit of service for either one, let alone produce one that complies with CPLR § 308. Using an affidavit to purportedly amend another affidavit by reference, without filing an amended affidavit of service, does not demonstrate proper service upon the individual defendants.

Even if the court were to accept the amendment by reference, which in effect, claims that all three defendants were served by leaving a single summons with 'JEAN', the requirement for personal service upon the individual defendants is still not met under CPLR § 308. Personal service under CPLR 308(1) is accomplished by personally delivering same to the person to be served, whereas personal service under CPLR§ 308(2) requires delivery of process to a person of suitable age and discretion 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 first class mail to the person to be served at his or her actual place of business ..., such delivery and mailing to be effected within twenty days of each other. CPLR 308(2).

This two-step process must be complied with for service under CPLR 308(2) to be deemed proper. See Jordan-Covert v. Petroleum Kings, LLC+, 199 AD3d 666, 156 N.Y.S.3d 396 (2nd Dept. 2021).

Here, plaintiff did not offer any proof of mailing the summons to defendants Jordon West and Chan Shue after delivery of same to 'JEAN', nor does the record contain one. Accordingly, plaintiff failed to effect proper service upon defendants Jordon West and Chan Shue.

Without proper service, the court lacks jurisdiction to entertain this case.

Election of Remedies Doctrine

Although plaintiff styled his motion as one for summary judgment, the court would accept it as one for default judgment, since issue was not joined when the motion was made, and plaintiff is pro se. In any case, the court lacks jurisdiction to entertain plaintiff's motion, since service has been found to be defective.

In addition to finding that service was not proper, the court further finds that plaintiff's within complaint was improperly filed in this court. Having previously filed an identical complaint  ² with NYSDHR on October 21, 2024, which claim is still pending when he filed the within case on January 16, 2026, plaintiff may not maintain the within case. The law is clear that one must elect his/her remedy when seeking redress for employment discrimination.

NY Exec. Law § 297 (9) provides for election of remedies for one aggrieved by an unlawful discrimination practice to seek redress either through an administrative complaint with NYDHR or the court.

Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages, including, in cases of employment discrimination related to private employers and housing discrimination only, punitive damages, and such other remedies as may be appropriate, including any civil fines and penalties provided in subdivision four of this section, unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this article, provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division. At any time prior to a hearing before a hearing examiner, a person who has a complaint pending at the division may request that the division dismiss the complaint and annul his or her election of remedies so that the human rights law claim may be pursued in court, and the division may, upon such request, dismiss the complaint on the grounds that such person's election of an administrative remedy is annulled

(NY Exec. Law § 297 [9])

See also Frank Vetro v Hampton Bays Union Free Sch. Dist., 148 AD3d 963 (2nd Dept. 2017 (holding "[P]ursuant to the election of remedies doctrine, the filing of a complaint with the New York State Division of Human Rights (hereinafter the Division) precludes the commencement of an action in the Supreme Court asserting the same discriminatory act. NY Executive Law § 297 (9) provides that, 'where the [D]ivision has dismissed such complaint on the grounds of administrative convenience[,] . . . such person shall maintain all rights to bring suit as if no complaint had been filed with the [D]ivision' "). Id (quoting Wrenn v Verizon, 106 AD3d 995, 995-996 [2013], quoting Executive Law § 297 [9])

Still further, there is no evidence that plaintiff has requested NYSDHR to dismiss his complaint and annul his election of remedies so that he can pursue his claims in court. There is also no evidence that the Division has dismissed plaintiff's complaint.

Accordingly, it is

ORDERED that plaintiff's motion for "Summary Judgment", which in effect is a motion for Default Judgment, is DENIED

ORDERED that defendants cross-motion to dismiss is GRANTED

ORDERED that this case is DISMISSED

This is the Decision and Order of this Court

Date June 23, 2026

Hon. Chidi A. Eze

FOOTNOTES

1.   Defendants responded to plaintiff's NYSDHR charge on March 4, 2025

2.   Both complaints are based upon and arose out of the termination of his employment by defendants.

Chidi A. Eze, J.