LLC CURTIS MCGHEE JERRY DAVIS KIM WOHLHUETER LUKE HOFACKER PHILIP WHITMORE RAJINIKANTH GURUSANKARNATH RAPHAELOSPINA TONY KAWAGUCHI ROBERT GREGG ANDCHRISTINE GREGG TRUST ROBERT WELENOFSKY PATRICK SELLENRAAD CHARLES TIMOTHY SWEENEY KELLY THERIAULT MATTHEW GWALTNEY AND COTTONWOOD RESOURCES LLC v. LLC JASON GILBERT (2026)

I. Statement Pursuant to CPLR 2219[a]

This proceeding was recently assigned to the undersigned, who has reviewed the entire record before rendering the within determination. In accordance with CPLR 2219[a], the Court recites the papers read and considered upon the motion of Respondent Jason Gilbert for an order vacating the Decision and Order dated January 20, 2026 and any judgment entered thereon, dismissing the Petition, or, alternatively, modifying the judgment.

The papers considered are as follows: the Notice of Motion dated February 26, 2026 (NYSCEF Doc. No. 15); the Affirmation of Mingyuan Zhang, Esq. in Support, with the exhibit annexed thereto (NYSCEF Doc. No. 16); the Affirmation of Jason Gilbert, with Exhibit A annexed thereto (NYSCEF Doc. No. 17); the Sheriff's Return of the Sheriff of Kent County, Delaware, together with the notice of the Delaware Department of State dated March 2, 2026 (NYSCEF Doc. No. 21); the Affirmation of Service of the Order with Notice of Entry (NYSCEF Doc. No. 22); Petitioners' Memorandum of Law in Opposition (NYSCEF Doc. No. 23); the Affirmation of Jacob R. Zissu, Esq. in Opposition (NYSCEF Doc. No. 24); the Affirmation of Kurt A. Harper, Esq. in Opposition, (NYSCEF Doc. No. 25), together with Exhibits A-1 through A-11 thereto (NYSCEF Doc. Nos. 26 through 36); and the Affirmation in Reply and Further Support of Mingyuan Zhang, Esq. (NYSCEF Doc. No. 37). The Court has likewise consulted the underlying record of this special proceeding, including the Verified Petition (NYSCEF Doc. No. 1), the Partial Final Award (NYSCEF Doc. No. 3), the Final Award (NYSCEF Doc. No. 4), the affidavits of service filed on November 19, 2025 and December 1, 2025 (NYSCEF Doc. Nos. 8 and 9), the notice of the Delaware Department of State dated November 24, 2025 (NYSCEF Doc. No. 10), and the Decision and Order of the Hon. Jeffrey H. Pearlman, J.S.C. dated January 20, 2026 (NYSCEF Doc. No. 11). The motion was made returnable in the Motion Submission Part on March 26, 2026.

II. Findings of Fact

A. The Arbitration and the Awards

This special proceeding arises from a dispute concerning the proceeds of oil wells. Petitioners and Respondents submitted their controversy to binding arbitration before the American Arbitration Association, in AAA Case No. 01-22-0004-8287, before Arbitrator Eli R. Mattioli. Arbitration followed an interpleader action commenced in the United States District Court for the District of Kansas under Case No. 22-cv-01057, in which Respondent Jason Gilbert (hereinafter "Gilbert") appeared and argued that relief could be afforded only through binding arbitration.

The Arbitrator issued a Partial Final Award dated January 13, 2025, consisting of eighteen pages, which resolved the substantive claims and awarded compensatory damages in the sum of $954,225.00. Its decretal paragraph awards the Claimants compensatory damages of $954,225.00, inclusive of $8,400.00 due to Cottonwood Resources, LLC, "which amount shall be apportioned among Claimants in accordance with the table set forth at page 11 hereof," and declares Respondents Lippelmann Partners, LLC and Jason Gilbert jointly and severally liable for that amount (NYSCEF Doc. No. 3 at 16). The table at page 11 allocates amounts among fifteen Claimants as follows: Curtis McGhee, Patrick Sellenraad and Charles Timothy Sweeney, the sum of $8,470 each; Kim Wohlhueter, the sum of $16,941; Jerry Davis, the sum of $25,411; Raphael Ospina, the sum of $29,646; Philip Whitmore, Rajinikanth Gurusankarnath and Kelly Theriault, the sum of $33,881 each; Matthew Gwaltney, the sum of $36,705; Tony Kawaguchi, the sum of $59,292; the Robert C. Gregg and Christine L. Gregg Trust, the sum of $93,174; Banman Lippelmann, LLC, the sum of $143,996; Luke Hofacker, the sum of $170,085; and Robert Welenofsky, the sum of $243,522. Those allocations total $945,825.00. Cottonwood Resources, LLC does not appear in the table; the award states that the total should be increased by $8,400 on account of an unpaid settlement between that Claimant and Respondents (id. at 12), which brings the compensatory award to $954,225.00.

The Arbitrator thereafter issued a Final Award dated January 29, 2025, consisting of three pages, which awarded the Claimants collectively, and without apportionment, the sum of $147,893.38 in attorneys' fees and arbitration costs. The Final Award further provides that the Partial Final Award is confirmed in all respects and is incorporated by reference in its entirety into the Final Award.

B. The Federal Confirmation Action and Gilbert's Sworn Statements of Residence

During the arbitration, discovery was permitted upon the subject of Gilbert's residence. At a deposition conducted on July 12, 2024, Gilbert testified under oath that his residence was 3266 Bird Avenue, Miami, Florida (hereinafter the "Miami Address"). On May 1, 2025, Petitioners commenced an action in the United States District Court for the Southern District of New York under Case No. 25-cv-3655, seeking confirmation and enforcement of the awards. Service in that action was undertaken upon Gilbert at the Miami Address by affixation on June 4, 2025 and mailing on June 13, 2025 (NYSCEF Doc. No. 28), and upon Lippelmann Partners, LLC through the Delaware Secretary of State, which transmitted its cover letter on June 17, 2025 to the address then on file for that entity, namely, the Miami Address.

Gilbert appeared specially in the federal action and contested diversity jurisdiction. On August 7, 2025, he filed a sworn declaration, docketed as Document No. 32 in that action, in which he averred that he had relocated to Texas on February 9, 2025, for business purposes and to be near his older son, and that he had established his permanent residence in Texas. In a footnote to that declaration he stated that, for logistical purposes, he also maintained a post office box in California for business purposes. The declaration further stated that an affidavit of an agent of his former Florida landlord, submitted in the federal action, confirmed that he had vacated the Miami Address on February 9, 2025 and that the unit had since been leased to an unrelated third party (NYSCEF Doc. No. 29). That affidavit itself is not part of the record on this motion. The exhibits annexed to that declaration redacted the particulars of the Texas address, disclosing only "Dallas, TX, 75204," but the residential lease annexed thereto identified Jason Gilbert as tenant, disclosed a legal description referencing "Mayo's BLK," and reflected a term commencing November 22, 2024 and expiring November 21, 2025 (NYSCEF Doc. No. 30). By examining the property comprised within Mayo's Second Addition in Dallas, Texas, counsel for Petitioners concluded that the lease covered 2003 Lucille Street, Dallas, Texas 75204 (hereinafter the "Dallas Address"). On August 18, 2025, counsel caused a search to be conducted upon the LexisNexis system, using search terms that included Dallas, Texas 75204 (NYSCEF Doc. No. 32). The resulting report lists numerous addresses associated with Gilbert, each with a date range. Among them are the Dallas Address, with a range of December 2024 to May 2025; the Miami Address, with a range of November 2004 to March 2025; an address on Grand Avenue in Miami, with a range beginning May 2023 and designated current; and 12310 Hillslope Street, Studio City, California 91604, with a range of 2021 to February 2023.

C. Commencement of This Special Proceeding and the Attempts at Service

Petitioners commenced this special proceeding on October 24, 2025 by the filing of a Verified Petition pursuant to CPLR article 75, seeking confirmation of the Partial Final Award and the Final Award. Petitioners state that the proceeding was commenced out of an abundance of caution, because they perceived the one-year period within which to seek confirmation to be drawing to a close and a determination of Gilbert's jurisdictional challenge in the federal forum was not forthcoming.

Service upon Gilbert was attempted at two separate addresses in two separate states. With respect to the Dallas Address, the affirmation of service filed on November 19, 2025 (NYSCEF Doc. No. 8; see also NYSCEF Doc. No. 34) is a preprinted form completed by hand. Its handwritten entries record three attempts. On October 30, 2025 at 7:59 p.m., the server noted no answer at the door and a FedEx package notice on the gate. On November 1, 2025 at 3:15 p.m., the server noted no answer at the door and that neighbors stated that the "tenants were moved out." On November 4, 2025 at 10:41 a.m., the server noted no answer at the door. The final handwritten entry states that, per the client's instructions, the server was to nail and mail because the address was the last known address for the defendant. The server affixed the Notice of Petition and Verified Petition to the door on November 12, 2025 at 6:58 p.m. and mailed copies the same day. The preprinted portion of the form states that the premises are the usual place of abode of the individual and that the defendant's residency was verified; the form does not describe any act by which residency was verified.

With respect to the Miami Address, a separate process server received the papers on October 29, 2025. The affidavit of service filed on December 1, 2025 (NYSCEF Doc. No. 9) records three attempts. On November 5, 2025 at 12:19 p.m., there was no answer at the residence and no activity was observed. On November 6, 2025 at 9:02 p.m., there was no answer, no activity was observed, and the interior lights were off. On November 7, 2025 at 9:06 a.m., there was no answer at the apartment and no movement or sounds were observed. The server affixed the Notice of Petition and Verified Petition to the door on November 7, 2025 at 9:11 a.m. and mailed copies on November 26, 2025, nineteen days after the affixation. The affidavit states that the premises were the respondent's place of abode within the State of Florida; it describes no inquiry supporting that statement. Service upon Lippelmann Partners, LLC was effected through the Delaware Secretary of State on November 24, 2025, which transmitted the process to the address then of record for that entity, namely, the Miami Address.

D. The Decision and Order of January 20, 2026

By Decision and Order dated January 20, 2026, the Hon. Jeffrey H. Pearlman, J.S.C., presiding in Part 44M, determined Motion Sequence Number 001 upon the papers filed as NYSCEF Doc. Nos. 5, 9 and 10. The court observed that CPLR 7510 directs the court to confirm an arbitration award upon timely application unless the award is vacated or modified in accordance with CPLR 7511 (see generally Matter of Bernstein Family Ltd. Partnership v Sovereign Partners, L.P., 66 AD3d 1, 3-5 [1st Dept 2009]), and further noted the requirement of CPLR 7503[c] that a notice of intention to arbitrate be served in the same manner as a summons or by registered or certified mail, return receipt requested. The court recited the affirmation and affidavit of service filed as NYSCEF Doc. Nos. 8 and 9 and the Sheriff's Return filed as NYSCEF Doc. No. 10, stated that it was satisfied that service was completed, and noted that Respondent did not appear. The court confirmed the arbitration award of January 29, 2025 and directed the Clerk to enter judgment in favor of Petitioners in the sum of $954,225.00, together with interest at the statutory rate from June 1, 2022, and in the sum of $147,893.38, together with interest at the statutory rate from January 29, 2025. The judgment so directed is framed as a single, undifferentiated sum in favor of all Petitioners collectively. The Court observes that a direction to the Clerk to enter judgment is not itself proof of the date upon which judgment was entered, and the record submitted upon this motion does not include the judgment itself. The Court accordingly refers throughout to the Decision and Order dated January 20, 2026 and any judgment entered thereon, and makes no finding as to the date of entry.

E. Post-Judgment Events and the Present Motion

Following the Decision and Order, service of the Order with Notice of Entry was undertaken upon Gilbert at the Dallas Address. The process server's affirmation of service recites that he received the papers for service on February 2, 2026; that on February 5, 2026 at 8:44 a.m. he spoke with an individual who identified herself or himself as the resident and who stated that the subject was unknown, and with a neighbor who stated that the subject was not a resident; and that he affixed the papers at the Dallas Address on February 9, 2026 and mailed them on the same date. The Court further notes that the second page of NYSCEF Doc. No. 22 is a Return of Non-Service bearing the caption Portfolio Recovery Associates, LLC v Karyn Castanon, a matter in the Justice Court of Dallas County, Texas, wholly unrelated to the parties or claims at bar. That document is extraneous to this record and is disregarded. Because the present determination does not rest upon events occurring in February 2026, the Court draws no inference from these post-judgment submissions as to where the Respondent resided in the autumn of 2025.

Service was also again effected upon Lippelmann Partners, LLC through the Delaware Secretary of State on February 23, 2026, and the notice of the Delaware Department of State dated March 2, 2026 is addressed to Lippelmann Partners, LLC at the Dallas Address. Petitioners emphasize that the address on file with the Delaware Department of State was thus changed at some point between November 24, 2025 and March 2, 2026 from the Miami Address to the Dallas Address.

On February 26, 2026, Gilbert alone, and not Respondent Lippelmann Partners, LLC, moved for the relief now before the Court. In his sworn affirmation, executed pursuant to CPLR 2106 on February 19, 2026, Gilbert avers that he is, and at all times relevant has been, a resident of California; that his actual dwelling place and usual place of abode is 12310 Hillslope Street, Studio City, California 91604; that he has continuously resided there since approximately September 1, 2025; and that he has owned that property for approximately four years, since March 2022, as evidenced by the deed of trust annexed as Exhibit A. He further avers that he has not resided at the Miami Address since February 9, 2025, that his former landlord has since leased that unit to an unrelated third party, and that he has never at any time resided at the Dallas Address. He states that he lived in Texas at an address other than the Dallas Address from February 9, 2025 through August 29, 2025, that he ceased working in Texas on or about August 29, 2025, and that he returned to California on September 1, 2025. He avers that he was never personally served with the Verified Petition or any other paper in this proceeding, and that had service been attempted at his California residence he would have received it and would have appeared to oppose the Petition.

In opposition, Petitioners submit that Gilbert's residence has been an elusive and malleable detail; that his present affirmation contradicts his prior sworn statements in the federal forum; that his claimed removal to California on September 1, 2025 came but four weeks after he swore that his permanent residence was in Texas and more than two months before the Texas lease expired by its terms; and that the only documentary support tendered is a deed of trust, which indicates a mortgage upon the property and predates the claimed move, rather than proof of occupancy. Petitioners further affirm that on December 16, 2025, prior to the Decision and Order, Gilbert's attorneys in the federal action advised Petitioners' counsel by telephone that Gilbert was personally aware of this proceeding and was weighing whether to oppose the Petition before decision or to move to vacate after the fact. Petitioners argue that service at the Dallas Address was valid, and, in the alternative, that the time to serve should be enlarged for good cause or in the interest of justice pursuant to CPLR 306-b. Significantly, Petitioners state in express terms that they do not oppose the alternative relief sought in paragraph (c) of the motion, namely, the itemization of the individual award amounts, and that they have no objection to the Court restating each of the individual amounts set forth in the Arbitrator's award.

In reply, Gilbert maintains that Petitioners have failed to sustain their burden of proving proper service; that no affidavit of any witness with personal knowledge attests that he in fact resided at the Dallas Address; that actual notice does not cure a defect in service; and that relief under CPLR 306-b, even if granted, could operate only prospectively and could not preserve a judgment entered without jurisdiction.

III. Conclusions of Law

A. The Governing Standard Upon a Motion to Vacate for Want of Personal Jurisdiction

A judgment rendered without personal jurisdiction over the party against whom it is entered cannot stand. CPLR 5015[a][4] provides that the court which rendered a judgment or order may relieve a party from it upon the ground of lack of jurisdiction to render the judgment or order. Although the statute is cast in permissive language, it is the settled rule that where such a defect is established the court is obliged to vacate, for a court without jurisdiction over the person has no power to adjudicate as to that person at all. Where a respondent challenges personal jurisdiction upon the ground of improper service, the usual requirement that the movant demonstrate a meritorious defense is obviated (see ICBC Broadcast Holdings-NY, Inc. v Prime Time Adv., Inc., 26 AD3d 239, 241 [1st Dept 2006]).

The Court begins from the proposition that a properly executed affidavit of service ordinarily constitutes prima facie evidence that service was made as it recites. That evidentiary effect is not, however, the end of the inquiry. The ultimate burden of proving, by a preponderance of the credible evidence, that service was properly made rests upon the party asserting the validity of the service (see Persaud v Teaneck Nursing Ctr., Inc., 290 AD2d 350, 351 [1st Dept 2002]). Where, as here, the affidavits tendered disclose upon their own face the circumstances said to defeat the service, they do not establish prima facie compliance with the statute, and there is nothing for the movant to rebut.

Petitioners observe that the Decision and Order of January 20, 2026 stated that the court was satisfied that service was completed. That statement does not foreclose the present inquiry. It was made upon Petitioners' unopposed submissions, before Gilbert appeared, and without the sworn submissions and exhibits now before the Court. CPLR 5015[a][4] authorizes the court which rendered a judgment or order to relieve a party from it upon the ground of lack of jurisdiction, and a respondent who did not appear is entitled to raise that ground by motion after the fact. The question is therefore examined upon the full record presented on this motion.

Service of process upon a natural person must comply with CPLR 308, and such service may be made without the state in the same manner as service is made within the state (CPLR 313). Service by affixing and mailing pursuant to CPLR 308[4], commonly termed nail and mail, is a method of last resort, available only where service under paragraphs one and two of that section cannot be made with due diligence. The statute imposes several requirements. The summons must be affixed to the door of the actual place of business, dwelling place or usual place of abode of the person to be served. A copy must be mailed to that person at his or her last known residence, or, in the manner the statute prescribes, to his or her actual place of business. The affixing and the mailing must be accomplished within twenty days of each other. Proof of service must thereafter be filed, and service is complete as the statute directs. Service by this method is effective only where the affixing occurs at one of the locations the statute designates (see Spath v Zack, 36 AD3d 410, 413 [1st Dept 2007] [addressing the attempted service upon the defendant Miller]).

The requirement of due diligence is a condition precedent, not a formality. Where the process server learns that the person sought does not reside at the address in question, some further investigation must be undertaken before resort is had to affixing and mailing, and the service is ineffective where no such investigation appears (see Casanova v Lopez, 225 AD3d 446, 447 [1st Dept 2024] [service failed, after a traverse hearing, where the server did not investigate upon being told that the defendant did not live at the address, and the alternative business-address theory also failed]).

B. The Attempted Service at the Dallas Address Was Ineffective

Petitioners' principal submission is that the Dallas Address was Gilbert's last known address at the time process was mailed to him. That submission proves too little. The phrase "last known residence" governs the mailing component of CPLR 308[4]. The affixing component is governed by a different and more exacting standard, namely, the actual place of business, dwelling place or usual place of abode. A demonstration that an address was the last address known to the petitioner therefore addresses one element of the statute and leaves another unproven, and compliance with one does not excuse noncompliance with the other (see Spath v Zack, 36 AD3d at 413).

The dispositive difficulty lies in the diligence that the statute exacts before this method may be employed at all. The affidavit of service filed on November 19, 2025 records three attempts at the door, each without answer; records that on the second attempt neighbors stated that the tenants were moved out; and records that affixing and mailing were then undertaken at the Dallas Address because, per the client's instructions, it was the last known address for the defendant. What the affidavit does not recite is any inquiry undertaken after the server was told that the occupants had departed, any attempt to ascertain an actual place of business or employment at which service might have been made, or any other step directed at determining where the Respondent then was. A server who receives that information and proceeds nonetheless to affix process, upon instruction rather than upon investigation, has not satisfied the condition precedent (see Casanova v Lopez, 225 AD3d at 447).

The Court has considered the preprinted statement on the form that the defendant's residency was verified. It does not alter the analysis. The statement identifies no investigative act by which residency was verified, and in particular none addressing the neighbors' report of November 1, 2025 that the tenants were moved out. The only inquiry the form records is that report itself. Petitioners' submissions do not identify any act of verification by the server beyond the entries recorded on the form. A statement that residency was verified, unaccompanied by any description of an inquiry responsive to information that the occupants had departed, does not establish that the diligence the statute requires was exercised (see Casanova v Lopez, 225 AD3d at 447). Nor does it place in genuine dispute what the server actually did, since no party identifies any such act.

That conclusion does not depend upon resolving the parties' dispute as to where Gilbert actually lived. Even assuming, for the purposes of this motion only, that every submission Petitioners advance concerning Gilbert's connection to the Dallas Address is accepted as true, and that the address was indeed his dwelling place in the autumn of 2025, the service would still fail, because the diligence which alone permits recourse to affixing and mailing was not exercised. The Court accordingly makes no finding as to where Respondent Gilbert resided at any relevant time, and none is necessary to the disposition (cf. Roc-Lafayette Assoc., LLC v Reuter, 183 AD3d 465, 466 [1st Dept 2020] [upon a motion for summary judgment in lieu of complaint, two attempts at an address the defendant had left were held insufficient upon the particular circumstances there presented]).

Petitioners' remaining submissions do not supply what the affidavit lacks. The identification of the Dallas Address was the product of inference: counsel deduced it from a partially redacted lease bearing the legal description "Mayo's BLK" and corroborated that deduction by a commercial database search. The Court does not question the good faith or the industry of counsel in undertaking that investigation, and it may well be that the inference was sound. The LexisNexis report itself, however, did not designate the Dallas Address as a current address. It associated that address with a date range ending in May 2025, and it listed other addresses, among them the Studio City, California address that Gilbert now identifies as his residence, albeit with a date range ending in February 2023 (NYSCEF Doc. No. 32). The Court does not determine Gilbert's residence from these entries and considers them solely in evaluating the information available to Petitioners before process was affixed. Petitioners' submissions do not describe any investigation directed at the report's date ranges or at the listed addresses other than the two at which service was attempted, whether before the attempts at the Dallas Address or after the neighbors' report of November 1, 2025. But an inference as to where a person might be found does not answer the question whether the diligence the statute requires preceded the affixing of process to a door. The Court likewise need not resolve the significance of the subsequent change in the address on file with the Delaware Department of State, which postdates the attempted service and pertains to an entity rather than to a natural person.

C. The Attempted Service at the Miami Address Was Likewise Ineffective

The service attempted at the Miami Address fails upon the same ground, and the analysis requires no weighing of the evidence whatever, because it proceeds entirely from Petitioners' own account. Petitioners' theory of this case is that Gilbert departed the Miami Address on February 9, 2025 and thereafter resided in Texas. That is what Gilbert declared in the federal action on August 7, 2025, and it is the premise upon which Petitioners constructed their Dallas investigation. Petitioners thus approached the Miami Address already possessed of information that the Respondent had left it some eight months earlier. His declaration also reported that a supporting affidavit of an agent of his former landlord, submitted in the same federal action, confirmed his departure and the reletting of the unit (NYSCEF Doc. No. 29). The Court relies upon that report only for what it communicated to Petitioners, and not for the truth of the matters the affidavit is said to establish. Petitioners' own LexisNexis report, obtained in August 2025, likewise associated the Miami Address with a date range ending in March 2025 (NYSCEF Doc. No. 32).

The affidavit of service filed on December 1, 2025 records three attempts upon consecutive days, November 5, 6 and 7, 2025, none answered, with no activity, no movement or sounds, and on one occasion the interior lights off. Its statement that the premises were the respondent's place of abode, like the corresponding statement on the Dallas form, describes no inquiry by which that was determined. It records no inquiry of neighbors, no inquiry directed to the Respondent's whereabouts or his place of business, and no other step of any kind, notwithstanding what Petitioners already knew and notwithstanding that the Respondent was represented by counsel in a pending federal action between these same parties. The absence of an attempt upon a weekend and the absence of an inquiry of the Department of Motor Vehicles are circumstances that informed the analysis in Spath v Zack (36 AD3d at 413); they are not talismanic requirements, and the Court does not treat them as such. What is dispositive is the absence of any further investigation addressing the information, already in Petitioners' hands, that the Respondent had departed that address (see Casanova v Lopez, 225 AD3d at 447). Petitioners point to the address then on file with the Delaware Department of State for Respondent Lippelmann Partners, LLC, which remained the Miami Address as of November 24, 2025. That record pertained to an entity rather than to the natural person to be served, and it did not address the Respondent's own sworn statement of departure; it therefore did not relieve Petitioners of the need to inquire further before affixing process to the door. The Court notes, for the avoidance of doubt, that the mailing accomplished on November 26, 2025 fell within the twenty-day interval the statute allows, so that no defect arises from its timing. The defect lies in the diligence preceding the affixing.

Upon the whole record, the Court concludes that Petitioners have not established that the due diligence which is a condition precedent to service under CPLR 308[4] was exercised before process was affixed at either address. The Court reaches that conclusion without a traverse hearing because no factual dispute material to it exists. The facts upon which the conclusion rests are what the process servers did at each address, what they were told, and what Petitioners knew before process was affixed. Each of those facts is drawn from Petitioners' own sworn submissions, namely the affidavits of service (NYSCEF Doc. Nos. 8 and 9) and the affirmations of Jacob R. Zissu and Kurt A. Harper. Gilbert does not dispute those recitals; he relies upon them. The preprinted statement on the Dallas form, addressed above, does not alter that conclusion. Petitioners, for their part, do not contend that the servers or counsel took any step beyond those their papers describe. The Court has examined each of Petitioners' submissions for any such additional step. The Zissu affirmation (NYSCEF Doc. No. 24 ¶ 4) and the Harper affirmation (NYSCEF Doc. No. 25 ¶¶ 10-11, 16) describe a LexisNexis search conducted on August 18, 2025 (NYSCEF Doc. No. 32), the examination of the redacted lease and the plat of Mayo's Second Addition (NYSCEF Doc. Nos. 30 and 36), and internet searches that the Harper affirmation characterizes as recent and renewed, the printouts of which bear the date March 16, 2026, after the present motion was made (NYSCEF Doc. No. 33). Both affirmations also refer, without itemization, to several forms of searches undertaken in response to Gilbert's federal declaration; as described, those searches were directed at locating a Texas street address. Petitioners also rely upon the address on file with the Delaware Department of State for the entity respondent. Nothing in those affirmations or in the exhibits annexed to the Harper affirmation reflects any inquiry made in response to the server's report that the tenants at the Dallas Address had moved out, or any inquiry addressing Gilbert's sworn statement that he had departed the Miami Address, before process was affixed at either location. Where the facts material to diligence are thus established by the proponent's own proof and are not controverted, whether those facts satisfy CPLR 308[4] is a question of law. The genuine factual dispute between the parties, concerning where Gilbert actually resided, is one the Court does not reach and need not resolve, for the determination would be the same upon either party's version of that question. The Court recognizes that the diligence question in Casanova v Lopez (225 AD3d at 447) was resolved after a traverse hearing, and relies upon that decision for the governing standard only. The Court does not suggest that a hearing may be dispensed with whenever service is contested; it holds only that, upon this record, no question of fact material to this determination remains to be tried. It follows that personal jurisdiction over Respondent Gilbert was never acquired, and that the Decision and Order dated January 20, 2026, together with any judgment entered thereon, is, as against him, a nullity.

D. Actual Notice Does Not Supply the Jurisdiction That Service Failed to Confer

Petitioners urge that Gilbert was personally aware of this proceeding no later than December 16, 2025, when his federal counsel so advised Petitioners' counsel by telephone, and that he made a tactical decision to abide the event rather than to oppose the Petition. The Court accepts that representation as true. It does not alter the result. The receipt of actual notice does not confer jurisdiction upon the court and cannot substitute for the compliance with CPLR 308 that the acquisition of personal jurisdiction demands (see Matter of Jiggetts v MTA Metro-N. R.R., 121 AD3d 414, 414-415 [1st Dept 2014], decided in a different service context but resting upon a principle of general application). Knowledge of a proceeding, however acquired and however complete, is not process.

Nor is Gilbert to be penalized for the deliberation that preceded his application. The remedy afforded by CPLR 5015[a][4] is available to the litigant who pauses to weigh his alternatives, and Petitioners identify no authority to the contrary. Gilbert moved on February 26, 2026, approximately five weeks after the Decision and Order was rendered. That is prompt by any measure, and no waiver of the jurisdictional objection has been demonstrated. The Court is not unmindful of Petitioners' frustration, which the record renders understandable. But the requirement of proper service is not a formality to be dispensed with when the respondent is thought to be elusive. It is the statutory predicate of the court's power over the person, and a judgment entered without it cannot stand whatever the merits of the underlying claim.

E. The Branch of the Motion Seeking Dismissal of the Petition Is Denied

Gilbert asks that, upon vacatur, the Petition be dismissed upon the ground that the omnibus judgment cannot be reconciled with what he characterizes as the apportionment mandate of the Partial Final Award. That contention conflates the form of the judgment with the sufficiency of the pleading. The Verified Petition seeks confirmation of two arbitration awards, and nothing in the apportionment argument impugns the validity of the Petition itself. The infirmity identified, if infirmity there be, would inhere in the judgment entered rather than in the application that preceded it, and the remedy for such an infirmity would be correction rather than dismissal.

Dismissal is further unwarranted in light of the disposition set forth below. Where service is found defective, a court may dismiss the action without prejudice or extend the time for service in the existing action, and the latter course spares the parties the expense and delay of a new proceeding under a new index number (see Henneberry v Borstein, 91 AD3d 493, 495 [1st Dept 2012]). For the reasons set forth in the succeeding section, the latter course is the one that justice requires here.

F. Petitioners' Application to Extend the Time for Service Is Granted

Petitioners request, in the alternative, that the time for service be enlarged for good cause shown or in the interest of justice (CPLR 306-b). That request was advanced in Petitioners' Memorandum of Law in Opposition rather than by cross motion. Respondent Gilbert addressed the request upon its merits in his reply affirmation and raised no objection to the form in which it was made. The absence of a cross motion has not been treated as an insuperable obstacle to such relief (see Bumpus v New York City Tr. Auth., 66 AD3d 26, 29, 36-37 [2d Dept 2009] [noting that the plaintiff had not cross-moved for an extension, and sustaining an extension in the interest of justice]). The Court's determination that the request may be entertained here rests, however, upon this record. The request was made in papers filed and served through NYSCEF on March 19, 2026, in advance of the March 26, 2026 return date. Gilbert's reply affirmation devotes a separate point to it (NYSCEF Doc. No. 37 ¶¶ 17-20), arguing that it should be rejected upon the merits and that it cannot preserve the prior determination; and nothing in the reply objects to the form in which the request was presented. Upon those circumstances, the Court is satisfied that Gilbert has had a full opportunity to be heard upon the application. The reply further argues, in the alternative, that if the Court finds service defective and nonetheless grants additional time to serve, the necessary sequence is vacatur followed by a fresh attempt at service (NYSCEF Doc. No. 37 ¶ 20). That is the sequence the Court adopts.

Good cause and the interest of justice are separate standards. Good cause requires a showing of reasonable diligence in attempting service, and the deficiencies catalogued above preclude such a finding here. The interest of justice standard is broader, and accommodates the diligence of the plaintiff together with any other relevant factor, including the expiration of the limitations period, the meritorious nature of the claim, the length of delay in service, the promptness of the request for an extension, and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Bumpus v New York City Tr. Auth., 66 AD3d at 32).

Weighing those factors, the Court finds that an extension is warranted. Petitioners' diligence was insufficient to satisfy CPLR 308[4], and that factor weighs against them; the Court does not minimize it. But their efforts were undertaken in good faith and are documented in the record, comprising multiple attempts at two addresses, a commercial database search, and the examination of a redacted lease and a public plat. The claim is one of apparent merit, resting upon arbitration awards issued after a multi-day evidentiary hearing in which Gilbert participated and testified. The period within which confirmation may be sought under CPLR 7510 runs for one year following delivery of the award. The record does not establish the date on which the awards were delivered. The Court therefore makes no finding as to whether or when that period expired, and it gives no weight in this analysis to any possible timeliness consequence of dismissal. The extension rests upon the remaining factors, which the Court finds sufficient in themselves. The Court expresses no view upon the status or the effect of the confirmation action pending in the United States District Court for the Southern District of New York. As to the length of delay and the promptness of the request, the record discloses that this proceeding was commenced on October 24, 2025; that the attempts at service described above were made between October 30 and November 26, 2025; that Gilbert moved to vacate on February 26, 2026; and that Petitioners requested an extension in their opposition papers filed on March 19, 2026, some three weeks after the motion was made and approximately five months after commencement. Finally, Gilbert received actual notice of this proceeding, has appeared by counsel, and has now identified under oath the address at which he says he resides and at which he says he would have received process, so that the obstacle which defeated the earlier attempts has been removed by the movant's own submission. No specific prejudice attributable to an extension has been demonstrated. Considered together, and without regard to the limitations period, those factors warrant an extension in the interest of justice, and they are reinforced by the practical advantage of completing service in this pending proceeding rather than requiring a new one (see Henneberry v Borstein, 91 AD3d at 495).

The Court emphasizes the limits of the relief granted. An extension under CPLR 306-b affords a renewed opportunity to effect proper service in the pending proceeding (see Henneberry v Borstein, 91 AD3d at 495). The extension granted here does not cure the defects identified in the prior attempts at service, and it does not reinstate the vacated determination as against Gilbert. The vacatur directed below is therefore in no respect diminished by the extension, and the extension is in no respect a ratification of what has gone before.

G. The Branch Seeking Modification of the Judgment Is Academic as to Respondent Gilbert

Because the Decision and Order and any judgment entered thereon are vacated as against Respondent Gilbert, and because nothing therefore remains against him to be modified, the branch of his motion seeking the entry of separate judgments for compensatory damages in the amounts specified at page 11 of the Partial Final Award, together with one collective judgment in the sum of $147,893.38 for attorneys' fees and costs, is academic insofar as it concerns him. Respondent Lippelmann Partners, LLC has not moved for any relief upon this motion, and the Decision and Order dated January 20, 2026, and any judgment entered thereon, are not disturbed as against that Respondent by this determination.

The Court does not decide the apportionment question, and nothing in this Decision and Order should be read as deciding it or as prejudging any application that may hereafter be made. It is sufficient to observe that upon the confirmation of an award, judgment shall be entered upon the award (CPLR 7514[a]), that judicial review in this sphere is a limited one (see American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 35 NY3d 64, 70 [2020]; Matter of Metropolitan Transp. Auth. v Westfield Fulton Ctr., LLC, 228 AD3d 435, 436 [1st Dept 2024]), and that Petitioners state expressly that they do not oppose the itemization sought and have no objection to the restatement of each individual amount. No challenge to the merits of the awards is presented or determined upon this motion, and the Court makes no determination as to the timeliness or availability of any such challenge.

IV. Conclusion and Decretal Paragraphs

Personal jurisdiction is not a technicality that yields to the equities of a particular case. Petitioners have pursued this claim through an interpleader action, an arbitration, a federal confirmation proceeding and this special proceeding, and they have done so in the face of a respondent whose stated residence has changed more than once. The Court does not minimize that burden, and it draws no adverse inference against Petitioners' counsel, whose efforts were diligent in the colloquial sense if not in the statutory one. But CPLR 308 prescribes how a natural person is to be served, and the affidavits upon which Petitioners rely do not establish compliance with that prescription. The January 20, 2026 Decision and Order and any judgment entered thereon must therefore be vacated as against Respondent Jason Gilbert. Because the interest of justice would not be served by relegating Petitioners to a new proceeding upon a procedural ground now capable of correction, Petitioners shall have a further opportunity to serve, at the address Gilbert has now supplied under oath. The Decision and Order dated January 20, 2026, and any judgment entered thereon, are unaffected by this determination as against Respondent Lippelmann Partners, LLC.

It is hereby ORDERED that the branch of the motion of Respondent Jason Gilbert seeking to vacate the Decision and Order dated January 20, 2026, and any judgment entered thereon, pursuant to CPLR 5015[a][4] is GRANTED; and it is further

ORDERED that the Decision and Order dated January 20, 2026 (NYSCEF Doc. No. 11), and any judgment entered thereupon, are vacated as against Respondent Jason Gilbert for want of personal jurisdiction, and the Clerk of the Court is directed to vacate such judgment as against Respondent Jason Gilbert only upon service upon the Clerk of a copy of this Decision and Order with notice of entry; and it is further

ORDERED that the branch of the motion seeking dismissal of the Petition is DENIED; and it is further

ORDERED that the branch of the motion seeking, in the alternative, modification of the judgment to enter separate judgments for compensatory damages in the amounts specified at page 11 of the Partial Final Award and one separate collective judgment in the sum of $147,893.38 for attorneys' fees and costs is DENIED as academic insofar as it concerns Respondent Jason Gilbert, no judgment against him remaining to be modified, and without prejudice to the entry of a conforming judgment in the event confirmation is hereafter granted as against him; and it is further

ORDERED that the application of Petitioners for an extension of the time within which to effect service pursuant to CPLR 306-b is GRANTED in the interest of justice, and the time within which Petitioners may serve Respondent Jason Gilbert with the Notice of Petition and Verified Petition is extended for a period of sixty (60) days from the date of service of a copy of this Decision and Order with notice of entry; and it is further

ORDERED that the Verified Petition is restored to the calendar as against Respondent Jason Gilbert, and Petitioners shall serve upon him a notice of petition specifying a return date in the Motion Submission Part, Room 130, 60 Centre Street, New York, New York, together with the Verified Petition and the affidavits and other papers upon which the Verified Petition is based, all to be served within the time prescribed by CPLR 403[b]; and it is further

ORDERED that answering papers, if any, and reply papers, if any, shall be served within the times prescribed by CPLR 403[b]; and it is further

ORDERED that Petitioners shall serve a copy of this Decision and Order, with notice of entry, upon all parties and upon the Clerk of the Court within twenty (20) days of the date of entry hereof; and it is further

ORDERED that nothing herein shall affect the Decision and Order dated January 20, 2026, or any judgment entered thereupon, as against Respondent Lippelmann Partners, LLC, which has not moved for relief upon this motion; and it is further

ORDERED that any relief requested and not expressly granted herein is DENIED.

The foregoing constitutes the Decision and Order of this Court.

Dated: September 22, 2026

New York, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT

Ronald Castorina, Jr., J.