NYC MANAGEMENT GROUP INC v. ST LOUIS (2022)

In this action for breach of contract and tortious interference, plaintiff, NYC Management Group, Inc., moves for default judgment under CPLR 3215 against defendants Tianna St. Louis and Tina Rattigan; defendants cross-move to dismiss under CPLR 3211 (a) (8) for lack of personal jurisdiction. The motion for default judgment is denied; the cross-motions to dismiss are granted.

DISCUSSION

I. Defendant St. Louis

NYC Management's motion for default judgment against defendant St. Louis is denied. St. Louis's cross-motion to dismiss under CPLR 3211 (a) (8) for lack of personal jurisdiction due to improper service is granted.

The sufficiency of both the motion and cross-motion as to St. Louis turns on the validity of service. NYC Management served St. Louis by nail-and-mail service under CPLR 308 (4). (See NYSCEF No. 5.) Nail-and-mail service is permissible only if the party serving process first diligently attempted to serve by the hand-delivery or leave-and-mail methods of CPLR 308 (1) and (2). The affidavit of NYC Management's process server does not establish the requisite due diligence.¹

That affidavit reflects only two prior attempts at service at “defendant/respondent's place of Abode within the State of New York,” both on the same day of the week, one at 10:28 a.m., one at 7:00 p.m. (NYSCEF No. 5.) Two attempts made in this manner are not enough to show due diligence. See Spath v Zack (36 AD3d 410, 413 [1st Dept 2007] [holding insufficient three prior attempts at service, none on a weekend, absent “any indication that the process server made any inquiries to ascertain [defendant's] whereabouts”]); State Higher Educ. Servs. Corp. v Sparozic (35 AD3d 1069, 1071 [3d Dept 2006] [explaining that “two attempts to serve a person during working hours does not satisfy the due diligence requirements of CPLR 308(4),” and holding that service attempts “on three different weekdays,” at 7:15 A.M., 7:15 P.M., and 10:10 A.M., respectively, “presents a very close case”]); County of Nassau v Yohannan (34 AD3d 620, 621 [2d Dept 2006] [holding due diligence not shown by “two attempts at service, both on weekdays, during hours when it reasonably could have been expected that the defendants were either working or in transit to or from work”].) NYC Management contends that its process server affixed a copy of the initiating papers to St. Louis's door only following a third, unsuccessful attempt at service (this one on a Saturday morning), thus satisfying the due-diligence requirement. (See NYSCEF No. 37 at ¶¶ 4-5.) But the affidavit of service does not say that; it instead reflects only two unsuccessful attempts at service under CPLR 308 (1) or (2). (See NYSCEF No. 5.)

The insufficiency of NYC Management's service efforts is exacerbated by the absence of any indication that NYC Management's process server attempted to verify St. Louis's address (for example, through Department of Motor Vehicles records). (See Spath 36 AD3d at 413 [in holding that plaintiff failed to establish due diligence, giving weight to the fact that the process server did not “check with the Department of Motor Vehicles to determine whether [defendant] still resided at the [service] address”].)

Indeed, the record suggests that St. Louis was not living at the address where NYC Management attempted to serve her. Three weeks after serving St. Louis by nail-and-mail at an address in New York City, NYC Management served her mother, defendant Rattigan, by leave-and-mail service under CPLR 308 (2) at an address in Connecticut—effecting service by delivering a copy of the initiating papers to “Tianna St. Louis as co-tenant.” (NYSCEF No. 6 [emphasis added].) That St. Louis was Rattigan's co-tenant in Connecticut on October 27, 2021 (see id.), calls into question whether St. Louis was still living in an apartment in Manhattan on the service date of October 9, 2021 (see NYSCEF No. 5). These doubts, though they are alone insufficient to invalidate service, underscore NYC Management's lack of due diligence for purposes of CPLR 308 (4).

II. Defendant Rattigan

NYC Management's motion for default judgment against defendant Rattigan is denied. Rattigan's cross-motion to dismiss under CPLR 3211 (a) (8) for lack of longarm personal jurisdiction is granted.

Rattigan, as noted above, is a Connecticut resident. In cross-moving to dismiss, she challenges the presence of longarm jurisdiction over her under CPLR 302. (See NYSCEF No. 21 at 21-23.) NYC Management has not alleged any facts in the complaint that might be relevant to longarm jurisdiction. (See NYSCEF No. 1.) Nor does NYC Management's attorney affirmation opposing in opposition to the cross-motion address this issue at all, much less identify an applicable head of jurisdiction under CPLR 302. (See NYSCEF No. 37.) NYC Management does provide an affidavit from its director of operations that includes some factual statements relevant to the issue of longarm personal jurisdiction. (See NYSCEF No. 35.) But those statements fail to establish that longarm jurisdiction exists here.

NYC Management appears to rely on the transacting-business ground for jurisdiction under CPLR 302 (a) (1).² This provision confers jurisdiction where a defendant has engaged in “purposeful” conduct within New York, “avail[ing] itself of the privilege of conducting activities” in the state and “invoking the benefits and protections of its laws.” (Fischbarg v Doucet, 9 NY3d 375, 380 [2007].) Determining whether a defendant's conduct meets this standard entails considering “the totality of the circumstances concerning the party's interactions with, and activities within the state,” including “both the quality and quantity of defendant's contacts” with New York. (Scheuer v. Schwartz, 42 AD3d 314, 316 [1st Dept 2007].)

Here, the affidavit offered by NYC Management states that Rattigan, St. Louis's mother, “has always been very involved in St. Louis’ career,” “appeared for meetings with St. Louis multiple times in Plaintiff's office” in Manhattan, and “called and corresponded with Plaintiff's employees regularly with respect to St. Louis’ career,” including at the time of St. Louis's alleged breach of her contract with NYC Management. (NYSCEF No. 35 at ¶¶ 4, 6, 7, 8.) That is not sufficient.

With respect to the meetings held in New York, NYC Management's affidavit does not identify the number of meetings that Rattigan attended, the lengths and subjects of those meetings, her role in attending the meetings, whether she actively participated in them, or whether the meetings led to the execution of any agreements between NYC Management and St. Louis. This barebones showing—which could mean no more than that Rattigan attended two exploratory meetings between NYC Management and St. Louis as a silent observer—does not demonstrate that Rattigan transacted business in New York. (See C-Life Grp. Ltd. v Generra Co., 235 AD2d 267, 267 [1st Dept 1997] [holding that participating in a 45-minute exploratory meeting in New York did not constitute transacting business under CPLR 302 [a] [1]].)

The affidavit's reference to “regular” calls and correspondence between Rattigan and NYC Management—without identifying the frequency, particular subjects, or significance of these contacts—is not enough either. (See Alas Intern. Ltd. v Ramiz, 257 AD2d 408, 409 [1st Dept 1999] [holding insufficient a number of telephone calls and facsimiles exchanged between nonresident defendants and an individual in New York]; Edelman v Taittinger, S.A., 298 AD2d 301, 302 [1st Dept 2002] [same]; accord Professional Personnel Mgt. Corp. v Southwest Med. Assoc, 216 AD2d 958, 958 [4th Dept 1995] [explaining that “[i]nterstate negotiations by telephone, facsimile, or mail are insufficient to impose personal jurisdiction in New York upon a non-resident defendant” under CPLR 302 (a) (1)].) Absent personal jurisdiction, NYC Management's claim against Rattigan must be dismissed.³

Accordingly, for the foregoing reasons, it is

ORDERED that NYC Management's motion for default judgment against St. Louis and against Rattigan is denied; and it is further

ORDERED that St. Louis and Rattigan's cross-motions to dismiss under CPLR 3211 (a) (8) are granted; and it is further

ORDERED that the action is dismissed in its entirety, with costs and disbursements to be taxed by the Clerk upon the submission of one bill of costs; and it is further

ORDERED that NYC Management serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly.

FOOTNOTES

1.   St. Louis also argues that service on her was untimely under CPLR 306-b. But it is undisputed that process was affixed to the door of the service address, and then mailed to that address, within 120 days from filing, as CPLR 306-b requires. St. Louis relies instead on the fact that NYC Management did not file its affidavit of service on her, thus completing service for purposes of CPLR 308 (4), until after the 120-day deadline had expired. (See NYSCEF No. 21 at 14-15.) This court finds that argument unpersuasive. (See Knopf v Esposito, 2021 NY Slip Op 50250[U], at *14 n 17 [Sup Ct, NY County Mar. 4, 2021].)

2.   Although NYC Management's claims against Rattigan sound in tortious interference with contract, NYC Management does not contend either that Rattigan committed a tort within New York under CPLR 302 (a) (2), or that she committed a tort outside New York and satisfies the additional requirements of CPLR 302 (a) (3).

3.   Rattigan also argues (see NYSCEF No. 21 at 18) that service of process on her under CPLR 308 (2) was invalid because the affidavit of service stated only that the follow-up mailing “was done on individual in an envelope marked personal & confidential at E. Hartford, CT on 10.28.2021.” (NYSCEF No. 6.) NYC Management contends that this statement “indicates that the additional mailing was made at E. Hartford, CT, which is the post office,” rather than reflecting mailing to Rattigan at an East Hartford address. (NYSCEF No. 37 at ¶ 12 [emphasis added].) Given this court's conclusion that it lacks longarm jurisdiction over Rattigan, the court does not reach this service issue.

Gerald Lebovits, J.