Emonuel Zavalunov, Plaintiff, v. Larysa Hevko, Defendant. (2026)

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on May 28, 2026, under motion sequence number one, by Larysa Hevko (hereinafter the defendant) for an order: a) extending defendant's time to respond to the complaint of Emonuel Zavalunov (hereinafter the plaintiff), b) pursuant to CPLR 3211 (a) (1), 3211 (a) (5), and 3211 (a) (8) dismissing the instant action, c) awarding costs and expenses to the defendant as a result of this action, and d) sanctioning the plaintiff for filing a frivolous action and awarding costs, expenses and attorney's fees to defendant a result of this action. The motion is unopposed.

Notice of motion

Affirmation in support

Exhibits A-D

BACKGROUND

On October 16, 2025, the plaintiff commenced the instant action by filing a summons and complaint (hereinafter the commencement papers) with the Kings County Clerk's Office (KCCO).

The complaint alleges twenty-six allegations of fact in support of four causes of action. The first cause of action seeks a declaratory judgment the plaintiff is the lawful owner of a 50% interest in the shares and proprietary lease for apartment 310 at a certain address in Brooklyn, New York (hereinafter the subject premises). The second cause of action seeks a constructive trust on 50% of the co-op interest and any proceeds from the use or sale of the subject premises. The third cause of action is for conversion. The fourth cause of action is for an accounting and for unjust enrichment.

The complaint alleges the following salient facts. On or about April 17, 2012, plaintiff and the defendant jointly purchased the subject premises with the plaintiff contributing approximately fifty percent (50%) of the down payment and closing costs associated with the purchase. Plaintiff claims that, after the purchase, defendant excluded him from possession, control, and any financial benefit associated with the subject premises and has refused to recognize his alleged ownership interest. Plaintiff seeks, inter alia, a declaration of ownership, the imposition of a constructive trust, reissuance of stock certificates and a proprietary lease in both parties' names, the return of property or its value, and monetary damages representing his alleged share of the subject premises.

On February 25, 2026, the plaintiff filed an affirmation of service of the commencement papers with the KCCO.

The defendant has filed the instant pre-answer motion seeking, inter alia, dismissal of the action.

LAW AND APPLICATION

Extension Of Time to Answer

The defendant's notice of motion first requests that the Court extend the defendant's time to answer the complaint. It also requests, among other things, that the Court dismiss the complaint on various grounds, including lack of personal jurisdiction.

Of course, if there is no personal jurisdiction over the defendant, the defendant is entitled to dismissal without the need to interpose an answer. Moreover, there would be no need for granting an extension to interpose an answer because the defendant's obligation to answer would not have been triggered. Also, if the defendant voluntarily chose to answer rather than simply move to dismiss the complaint, the answer would not be late.

Dismissal of the Complaint pursuant to CPLR 3211 (a)

The defendant seeks dismissal of the complaint pursuant to CPLR 3211 (a) (1), CPLR 3211 (a) (5) and CPLR 3211 (a) (8). "Before addressing any other issues, the Court must first determine whether it has personal jurisdiction over the defendant" (Hughes v Malek, 87 Misc 3d 1206[A], 2025 NY Slip Op 51478[U], *1 [Sup Ct, Kings County 2025], citing Wells Fargo, N.A. v Jones, 139 AD3d 520, 522 [1st Dept 2016]. "If the Court lacks personal jurisdiction over the defendant 'all subsequent proceedings' against that defendant 'would be rendered null and void' " (Hughes v Malek, 87 Misc 3d 1206[A], 2025 NY Slip Op 51478[U], *1 [Sup Ct, Kings County 2025], citing Wells Fargo, N.A. v Jones, 139 AD3d 520, 522 [1st Dept 2016], and citing Cipriano v Hank, 197 AD2d 295, 298 [1st Dept 1994]).

"CPLR 306-b requires that service of the summons and complaint or summons with notice 'shall be made within one hundred twenty days after the commencement of the action or proceeding' " (Purzak v Long Is. Hous. Servs, Inc., 149 AD3d 989, 992 [2d Dept 2017]; CPLR 306-b). "If service is not made upon a defendant within the time provided in [CPLR 306-b], the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service" (OneWest Bank N.A. v All the Heirs at Law (Moran), 240 AD3d 803 [2d Dept 2025], quoting U.S. Bank N.A. v Bindra, 217 AD3d 719, 720 [2023]).

On February 25, 2026, the plaintiff filed an affirmation of service of the commencement papers with the KCCO. Nimer Abderrahm, plaintiff's process server, averred that he attempted to deliver the commencement papers to the defendant at 2800 Coyle Street, Unit 310, Brooklyn, New York on Monday February 9, 2026, at 11:14 AM and on Tuesday February 17, 2026, at 8:36 pm. He then served the commencement papers on Thursday February 21, 2026, at 4:28 PM by affixing one true copy upon the entrance door. On February 24, 2026, he mailed the commencement papers to the defendant at the same address by first class mail. The envelope bore the legend "personal and confidential".

CPLR 308 (4) provides as follows:

"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 . . ."

A plaintiff may only resort to service pursuant to CPLR 308 (4) where service pursuant to CPLR 308 (1) and (2) cannot be made with due diligence (see County of Nassau v Lotosky, 34 AD3d 414, 414 [2d Dept 2006]). "The due diligence requirement of CPLR 308 (4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received" (County of Nassau v Lotosky, 34 AD3d 414, 415 [2d Dept 2006], citing Gurevitch v Goodman, 269 AD2d 355, 355 [2d Dept 2000]).

Of the three attempts at service on the defendant two were made during the workweek during normal business hours when it could reasonably have been expected that the defendant would either be working or be in transit to or from work (see Earle v Valente, 302 AD2d 353, 353 [2d Dept 2003]). The affidavit of the plaintiff's process server, together with the papers submitted with the instant motion failed to demonstrate that the process server attempted to ascertain the defendant's business address and to effectuate personal service at that location, pursuant to the provisions of CPLR 308 (1) and (2) (see County of Nassau v. Long, 35 AD3d 787, 787 [2d Dept 2006]; see Earle v Valente, 302 AD2d 353, 353-354 [2d Dept 2003]).

The plaintiff did not satisfy the due diligence requirements necessary before resorting to service pursuant to CPLR 308 (4). Therefore, the plaintiff failed to obtain personal jurisdiction over the defendant.

Moreover, assuming for the sake of argument that the plaintiff's use of CPLR 308 (4) had been proper, there was an additional problem with the timing of service. In accordance with CPLR 308 (4), service was not completed until March 7, 2026, ten days after the filing of the affidavit of service. The instant action was commenced on October 16, 2025. In accordance with CPLR 306-b, service upon the defendant had to be completed on or before February 13, 2026. Contrary to the requirements of CPLR 306-b, the plaintiffs did not effectuate service of the commencement papers upon the defendant within one hundred twenty days after the commencement of the action. In fact, the service which was attempted pursuant to CPLR 308 (4) was not completed until one hundred and forty-two days after the commencement of the action. Consequently, the action may be dismissed.

Sanctions pursuant to 22 NYCRR 130-1.1

The defendant also seeks an award of sanctions against the plaintiff for commencing a frivolous lawsuit. The defendant annexed a copy of an Order and Judgment and notice of its entry, which appeared to resolve the very issues presented in the instant action.

"Courts have discretion to award costs or impose financial sanctions against a party or attorney in a civil action for engaging in frivolous conduct" (U.S. Bank N.A. v Nunez, 208 AD3d 711, 713 [2d Dept 2022], quoting Industry LIC Condominium v Hudes, 200 AD3d 761, 761 [2d Dept 2021], and citing 22 NYCRR 130-1.1[a], [b]). "Conduct may be deemed frivolous if it is 'undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another,' or 'asserts material factual statements that are false' " (U.S. Bank N.A. v Nunez, 208 AD3d 711, 713 [2d Dept 2022], quoting 22 NYCRR 130-1.1 [c] [2], [3]).

Here, the Court declines to impose sanctions against the plaintiff in an exercise of discretion. However, the Court imposes cost in the amount of $250.00 payable by the plaintiff to the defendant within 30 days of notice of entry of the instant decision and order.

CONCLUSION

The branch of the motion by defendant Larysa Hevko for an order dismissing the complaint of Emonuel Zavalunov pursuant to CPLR 3211 (a) (8) for lack of jurisdiction is granted.

The branch of the motion by defendant Larysa Hevko for an order awarding sanctions against the plaintiff Emonuel Zavalunov for commencing a frivolous lawsuit is denied in an exercise of discretion.

The Court imposes costs in the amount of $250.00 payable by the plaintiff to the defendant within 30 days of notice of entry of the instant decision and order.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.

Francois A. Rivera, J.