PHIPPS SC LLC v. CARVAJAL (2025)

Order, Supreme Court, New York County (Richard Latin, J.), entered on or about September 6, 2023, which, after a traverse hearing, denied plaintiff's motion for a default judgment and granted defendant's cross-motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff failed to show, by a preponderance of the evidence, that service was properly made on defendant pursuant to CPLR 308(2) (see Persaud v. Teaneck Nursing Ctr., 290 A.D.2d 350, 351, 736 N.Y.S.2d 367 [1st Dept. 2002]).  The court correctly found that service upon an employee of a mail/messenger center in the lobby of defendant's building, whose manager testified that she was not authorized to accept service of process, did not constitute service upon a “person of suitable age and discretion at the actual place of business,” as required by CPLR 308(2) (see Matter of Pickman Brokerage [Bevona], 184 A.D.2d 226, 226, 584 N.Y.S.2d 807 [1st Dept. 1992]).  Even assuming the building employee later delivered the summons to defendant, it would not constitute proper service (see Fashion Page v. Zurich Ins. Co., 50 N.Y.2d 265, 269, 273, 428 N.Y.S.2d 890, 406 N.E.2d 747 [1980]).

We find no basis to disturb the court's credibility determinations, which are entitled to deference on appeal (see Cadlerock Joint Venture II, L.P. v. Carrion, 147 A.D.3d 594, 48 N.Y.S.3d 58 [1st Dept. 2017]).