WALKOFF HOLDINGS LLC v. WAVERLY HOMES DEVELOPMENT LLC (2023)

Defendants Mordechai Green, Yakov Markowitz, Blimah Mandel, Benzion Strasser, Moshe Weber, Solomon Feder, Naftali Schnitzler, Joel Parnes, Berel Braver, Issac Adler, Moses Appel, Shmuel Weider, Joel Freund, Moses Englander, Solomon Schwartz, Joel Grinfeld, Simon Snitzer, Samuel Reich, Menachem Tauber, Mordechai Retek, Aryeh Greenberg, Joel Sofer, and David Rosenfeld (the “moving defendants”) move Pursuant to Section 3211(a)(8) of the Civil Practice Law and Rules (“CPLR”) for an order dismissing the complaint insofar as it was filed against them in this action, alleging a lack of personal jurisdiction over them, or, in the alternative, for an order pursuant to CPLR Section 2201 staying this action pending a final award and confirmation of a related arbitration proceeding before the Beth Din of America.

The moving defendants each allege they are observant practitioners of Orthodox Judaism. Each defendant notes that the affidavit of service applicable to him or her evidences four attempts to serve him or her, one of which was on Saturday, February 4, 2023. Relying upon Section 13 of the Business Law, the moving defendants argue that service on their Sabbath was improper, alleging plaintiff's counsel know of their religious observances, including because the underlying contracts were made pursuant to Torah law, that Waverly Gardens was built to include a synagogue and ritual bath, and that they are currently engaged in rabbinical court arbitration with parties relevant to plaintiff's operations. Plaintiff, in opposition, alleges that the sun set on February 4, 2023, at 5:18 p.m., which plaintiff asserts was the conclusion of sabbath observance. Counsel for the plaintiff avers that he told the process server that any Saturday service attempts were to be made after sundown; affidavits of service reflect that February 4, 2023, service attempts occurred after 5:18 p.m. The moving defendants reply with the affirmation of a rabbinical expert who advises that the interpretation of laws and practices of Sabbath observances vary between Jewish communities, and that within certain ultra-Orthodox Jewish community the Sabbath continues until at least 72 minutes after sunset or when three visible stars emerge on Saturday evenings.

Because the service affidavits reflect three appearances of the process server separate from the February 4, 2023, service attempts, the court reaches the ultimate issue on the motion without deciding when the moving defendants' Sabbath ended or whether plaintiff knew when defendants' Sabbath observances ended. Compare JPMorgan Chase Bank, N.A. v Lilker, 153 AD3d 1243 [2d Dept 2017]; see also Martin v Goldstein, 20 AD 203 [4th Dept 1897]; State of New York v Summers, 211 AD3d 1208 [3d Dept 2022]; State of New York v Mappa, 78 AD3d 926 [2d Dept 2010]; Johnson v Waters, 291 AD2d 481 [2d Dept 2002]; see generally Matter of Mestecky v City of New York, 30 NY3d 239 [2017].

CPLR Section 308 requires that service be attempted by personal delivery of a summons “to the person to be served” (CPLR § 308[1]), or by delivery “to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode” of such person (CPLR § 308[2]). Alternative service pursuant to CPLR Section 308(4), commonly known as “nail and mail” service, may be used only where service cannot be made in compliance with CPLR Sections 308(1) or (2) upon the exercise of “due diligence” (CPLR § 308[4]; see Feinstein v Bergner, 48 NY2d 234, 238-239 [1979]; HSBC Mtge. Corp. [USA] v Hollender, 159 AD3d 883, 884 [2d Dept 2018]). A party's exercise of “due diligence” must be evaluated on a case-by-case basis. See Barnes v City of New York, 51 NY2d 906, 907 [1980]. Due diligence may exist with “a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times.” Estate of Waterman v Jones, 46 AD3d 63, 66 [2d Dept 2007].

Defendants argue that all attempts at service were in February at Monticello addresses, which they assert are not their primary residences and, instead, are summer residences. Defendants therefore submit that plaintiff's use of the alternative service provisions of Section 308 were inappropriately employed by plaintiff and insufficient to acquire personal jurisdiction over them.

Counsel for plaintiff asserts that he reviewed complaints filed in related litigation with respect to which the moving defendants are plaintiffs and did not find physical addresses for them at which they might have been served. He further argues that there is no public access to an arbitration file that he could review for defendants' addresses. Counsel further disputes that the moving defendant's properties in Monticello are merely summer homes. The affidavits of service indicate that a process server spoke with a purported caretaker of the Monticello premises, whose first name only is offered, who confirmed the “last known address” of the moving defendants.

Viewed in the light most favorable to plaintiff, a process server went to residences of the twenty-three moving defendants on four separate occasions for the purpose of serving the moving defendants with the initial papers relating to this action, including at one point during or very nearly following the conclusion of the Sabbath.¹ A process server further appeared at each of the twenty-three residences on an additional occasion to affix papers to the doors thereof. According to plaintiff's submissions, at all such times, during each of those ninety-two appearances of the process server, not a single person was ever present at any of the residences attributed to the moving defendants. Each of the affidavits of service denotes attempts at service or affixation at Monticello addresses on February 4, 6, 7, and 8, 2023.² The affidavits further allege a mailing “at [the] last known address” of each on February 14, 2023. The “last known address” to which the papers were mailed with respect to each of the moving defendants is the same premises at which not one of the moving defendants was present on ninety-two occasions.

What constitutes due diligence is not the quantity of attempts at personal service but the quality thereof. Greene Major Holdings, LLC v Trailside At Hunter, LLC, 148 AD3d 1317 [3d Dept 2017]. The court is struck by what appears to be nearly a hundred separate opportunities for contact within a single condominium complex, including during or very near the arguable Sabbath, when, it stands to reason, such persons would likely be at or near their residences,³ without a single person ever being present aside from a caretaker named Dennis. Counsel's minimal effort in reviewing a complaint in a companion case cuts against plaintiff's argument, demonstrating a reasonable suspicion that the defendants would not be found in Monticello during the month of February. This court is not convinced that plaintiff reasonably expected to find the defendants at the Monticello homes in February.

Plaintiff's attempts at service are lacking in quality. After ninety-two visits to twenty-three residences, it was obvious that none of the moving defendants would be found at these homes in February. It is clear that the locations at which service was attempted were not places where plaintiff could reasonably expect to find the moving defendants at the times service was attempted, and, as a result, it was likewise clear that the moving defendants could not reasonably be expected to receive mail in Monticello during the month of February. Therefore, service was insufficient and deficient.

Accordingly, it is hereby

ORDERED that pursuant to CPLR Section 3211(a)(8) the complaint filed in this action is dismissed due to a lack of personal jurisdiction over the moving defendants; and it is further

ORDERED that the motion for a stay is denied as moot.

The foregoing constitutes the Decision and Order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.

FOOTNOTES

1.   While the court is mindful that service cannot be attempted at a time when one is aware that the subject of service is observing a Sabbath, the court is equally mindful that the non-presence of every moving defendant at a time when at least a substantial portion of those observing a Sabbath would likely be at or near their residences operates as further notice to plaintiff that the moving defendants were not reasonably likely to be found in Monticello during the month of February.

2.   The affidavits recite service attempts upon each of the moving defendants on the same dates; only the times of attempted service vary, by a matter of minutes among each.

3.   While the court is mindful that a person may have more than one dwelling or residence (National Dev. Co. v Triad Holding Corp., 930 F2d 253 [2d Cir 1991]), service must still comport with the tenet of due process and be calculated to provide actual notice to a person who is being sued of that fact. Here, it appears that service was attempted at a location and time during which it could not reasonably be expected that any of the moving defendants would receive notice that he or she was the subject of the instant litigation.

Meagan K. Galligan, J.