WINDWARD BORA LLC v. EDINBORO (2024)

OPINION AND ORDER

Plaintiff Windward Bora LLC commenced this action against Defendants Jennifer Edinboro, as administratrix and heir to the Estate of Laurence G. Edinboro (the “Estate”); Dawn Edinboro, individually and as heir to the Estate; and Carol Joiner, as heir to the Estate, to foreclose on a residential mortgage upon the real property located at 41 East 53rd Street, Brooklyn, New York 11203 (the “Property”). See generally Dkt. No. 1.

Plaintiff moves the Court to (1) extend its time to serve Defendants Jennifer Edinboro and Dawn Edinboro (collectively, “the Edinboro Defendants”) with the summons and complaint for an additional 120 days and (2) issue an Order to Show Cause as to why the Edinboro Defendants cannot be served by publication or in another manner directed by the Court. See Dkt. No. 11. For the reasons set forth below, Plaintiff's motion is granted in part and denied in part.

Background

The following facts are taken from the Complaint (Dkt. No. 1), Plaintiff's submission in connection with this motion (Dkt. No. 11), and from this Court's prior orders in this matter.

The Complaint alleges that on April 17, 2007, Laurence G. Edinboro executed a Note in the principal amount of $50,000.00 that was secured by a mortgage on the Property. See Dkt. No. 1 ¶¶ 9-10. Following a modification and a series of assignments, Plaintiff alleges that it is the current owner and holder of the note and mortgage. Id. ¶¶ 11-23, 14. On May 11, 2015, Mr. Edinboro passed away, and Defendant Jennifer Edinboro was appointed as the administratrix of his Estate. Id. ¶ 3. Pursuant to an Administrator's Deed dated April 9, 2016, the Property was transferred to the Edinboro Defendants. Id. ¶ 4.

Plaintiff alleges that beginning on February 1, 2017, the Estate failed to make the monthly payments required by the mortgage. Id. ¶ 15. Plaintiff issued a 30-day notice to cure, and the Estate did not respond or otherwise cure the default. Id. ¶ 16.

On April 27, 2023, Plaintiff commenced this foreclosure action by filing a summons and complaint. See Dkt. No. 1. On May 1, 2023, the Clerk of Court issued summonses to Plaintiff. See Dkt. No. 7. On July 17, 2023, Plaintiff served Defendant Joiner with the summons and complaint.¹ See Dkt. No. 9. Plaintiff subsequently requested two extensions of time to serve the Edinboro Defendants, which the Court granted. See Dkt. Nos. 8, 10; see also Aug. 2, 2023 Dkt. Order; Oct. 4, 2023 Dkt. Order.

On October 31, 2023, Plaintiff filed a motion to (1) extend its time to serve the Edinboro Defendants with the summons and complaint for an additional 120 days and (2) to request that the Court issue an Order to Show Cause as to why the Edinboro Defendants cannot be served by publication or in another manner directed by the Court. See Dkt. No. 11. In support of the motion, Plaintiff submits an affidavit of due diligence and attempted service upon Defendant Jennifer Edinboro, sworn to by Rosemary A. LaManna, Sr. Vice President of Alstate Process Service Inc. See Dkt. No. 11-4. Plaintiff also submits a second affidavit of due diligence and attempted service upon Defendant Dawn Edinboro, also sworn to by Rosemary LaManna. See Dkt. No. 11-5.

According to Rosemary LaManna, a process server, Lisandro Luna, attempted service on the Edinboro Defendants at the Property on May 11, 2023, August 16, 2023, and October 4, 2023. Dkt. No. 11-4, at 2; Dkt. No. 11-5, at 2. On the first attempt, the process server spoke with the current male occupant who stated that he did not know Jennifer or Dawn. Dkt. No. 11-4, at 2; Dkt. No. 11-5, at 2. On the second attempt in August 2023, the process server observed that the Property was vacant and boarded, and a neighbor informed the process server that no one was living at the Property because of a fire. Dkt. No. 11-4, at 3; Dkt. No. 11-5, at 3. On the third attempt in October 2023, the process server confirmed with the neighbors that the Property was still vacant. Dkt. No. 11-4, at 3; Dkt. No. 11-5, at 3.

Plaintiff also attempted to obtain alternate addresses for both Defendants. First, Plaintiff submitted a total of eight formal requests—four for each Defendant—on the Postmaster of Brooklyn but did not receive a response. Dkt. No. 11-4, at 3-4; Dkt. No. 11-5, at 3-4. Second, Plaintiff submitted a request to the Department of Motor Vehicles of the State of New York for Jenniffer's address and was provided the address of the Property. Dkt. No. 11-4, at 3-4. Plaintiff could not submit a similar request on behalf of Dawn because Plaintiff does not have her birthdate or social security number despite performing various internet skip searches to obtain this information. Dkt. No. 11-5, at 3. Third, Plaintiff searched the New York City Board of Elections’ database for the Edinboro Defendants voter registration information. Dkt. No. 11-4, at 3; Dkt. No. 11-5, at 3. The only address associated with Defendant Jennifer Edinboro was the address of the Property, and no records were found for Dawn. See Dkt. No. 11-4, at 3; Dkt. No. 11-5, at 3.

After these efforts failed, Plaintiff attempted to contact the Edinboro Defendants by email to arrange service of process, but neither Defendant responded. See Dkt. No. 11-4, at 4; Dkt. No. 11-5, at 4. Plaintiff also tried to contact Defendant Jennifer Edinboro by phone and Defendant Dawn Edinboro by Facebook, but was ultimately unable to get in contact with either person. See Dkt. No. 11-4, at 4-5; Dkt. No. 11-5, at 4-5.

Plaintiff argues that the foregoing events establish that service of process on the Edinboro Defendants by traditional methods of service is impracticable, and as such, the Court should authorize service by publication or an alternative method of service. Dkt. No. 11-2, at 6-7. Plaintiff proposes publishing the summons and complaint in the Brooklyn Daily Eagle and Our Times Press, two newspapers published in Kings County, New York, where the Property is located, for four consecutive weeks. See Dkt. No. 11-6.

Discussion

Federal Rule of Civil Procedure 4(e)(1) provides that service of process may be made “by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” In New York, service of process on an individual may be made by: (1) personally delivering the summons and complaint to the person; (2) delivering the summons to a person of “suitable age and discretion at the actual place of business, dwelling place or usual place of abode” of the individual to be served, and then mailing the documents; (3) delivering the summons and complaint to an authorized agent; or (4) affixing the summons and complaint to the door of the individual's “actual place of business, dwelling place or usual place of abode” and then mailing the documents. CPLR §§ 308(1)-(4).

When service according to these traditional methods is “impracticable,” service may be made “in such manner as the court, upon motion without notice, directs.” Id. § 308(5). “Specifically, Section 308(5) requires a showing of impracticability of other means of service, but does not require proof of due diligence or of actual prior attempts to serve a party under the other provisions of the statute. The meaning of ‘impracticability’ depends upon the facts and circumstances of the particular case.” Ferrarese v. Shaw, 164 F. Supp. 3d 361, 365 (E.D.N.Y. 2016) (internal quotations and citation omitted).

The Court has “broad discretion” under CPLR § 308(5) “to fashion other means of service adapted to the particular facts of the case before it.” Silverman v. Sito Mktg. LLC, No. 14-CV-3932 (WFK), 2015 WL 10906059, at *3 (E.D.N.Y. Oct. 23, 2015) (cleaned up). Any alternate method of service must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see Ferrarese, 164 F. Supp. 3d at 365 (the Court must ensure that the alternate method complies with due process).

Here, Plaintiff has established that service of process on the Edinboro Defendants under the traditional methods of service set forth in CPLR § 308(5) has, thus far, been impracticable. Plaintiff attempted service four times at the only addresses associated with Jennifer and Dawn in public records searches but was unable to serve either Defendant successfully. In addition, the Property is vacant, and despite searching multiple databases, Plaintiff has not been able to locate any additional addresses associated with the Edinboro Defendants. Lastly, Plaintiff attempted to contact the Edinboro Defendants directly to arrange service but did not receive a response.

These failed efforts establish that traditional service under CPLR §§ 308(1)-(4) is currently impracticable and an alternate method of service is warranted. See, e.g., Wells Fargo Bank, N.A. v. Johnson, No. 20 CV 5496 (LDH) (LB), 2021 WL 9678391, at *2 (E.D.N.Y. Feb. 9, 2021) (“Johnson”) (finding that plaintiff demonstrated impracticably by producing an affidavit indicating that service was attempted four times at the only address associated with defendant in public records search); United States v. McHenry, No. 19-CV-1707S, 2020 WL 6886558, at *1 (W.D.N.Y. Nov. 24, 2020) (granting motion for substituted service in foreclosure action where the property was vacant, searches of multiple databases revealed no current public database registration, and calls to listed telephone numbers were fruitless); S.E.C. v. HGI, Inc., No. 99-CV-3866, 1999 WL 1021087, at *1 (S.D.N.Y. Nov. 8, 1999) (finding proof of impracticability where, despite efforts to locate the defendant by inquiring with the United States Postal Service and by searching computer databases, defendant's whereabouts remained unknown).

Plaintiff has not, however, established that the proposed alternative method of service – service by publication alone – is warranted at this stage. “As a general matter, service by publication is disfavored.” Chinese Am. C.R. Coal., Inc. v. Trump, No. 21-GV-4548 (JGK), 2021 WL 3754242, at *1 (S.D.N.Y. July 27, 2021) (citing Boddie v. Connecticut, 401 U.S. 371, 382 (1971) (“[P]ublication ․ is the method of notice least calculated to bring to a potential defendant's attention the pendency of judicial proceedings.”)); Mullane, 339 U.S. at 315 (“It would be idle to pretend that publication alone ․ is a reliable means of acquainting interested parties of the fact that their rights are before the courts.”). In the Second Circuit, courts have allowed service by publication where “there are indications that a defendant has engaged in ‘deliberate avoidance and obstruction’ to prevent service from being effected.” Urbont v. Sony Music Ent., No. 11-CV-4516 (NRB), 2012 WL 1592519, at *3 (S.D.N.Y. May 4, 2012) (quoting SEC v. Tome, 833 F.2d 1086, 1092 (2d Cir. 1987)). For example, in Urbont, the Court authorized service by publication because the defendant, who was served with the original complaint, was trying to avoid service of the amended complaint. Id. at *3. Similarly, in Johnson, the court authorized service by publication based on the Court's finding that the defendant “may have provided false contact information in furtherance of fraud.” Johnson, 2021 WL 9678391, at *2.

In contrast to Urbont and Johnson, Plaintiff has not provided any similar evidence of wrongdoing and has not otherwise established that the Edinboro Defendants have intentionally evaded service. Accordingly, Plaintiff has not established that service by publication is warranted at this time.

Conclusion

For the reasons set forth above, Plaintiff's motion is granted in part and denied in part. The Court grants Plaintiff's request for an additional 120-days to serve the Edinboro Defendants with the summons and complaint. Plaintiff shall complete service by June 29, 2024. The Court denies Plaintiff's request for service by publication at this time; however Plaintiff is permitted to renew its application and propose an alternate method of service that is reasonably calculated to provide the Edinboro Defendants with notice of this action. See Mullane, 339 U.S. at 314.

Plaintiff shall provide a status report regarding its efforts to serve the Edinboro Defendants by March 25, 2024. In the status report, Plaintiff shall also provide an update regarding service on Defendant Joiner.

SO ORDERED.

FOOTNOTES

1.   Defendant Joiner has not responded to the Complaint or otherwise appeared in this action. Plaintiff does not make any assertion about next steps regarding Defendant Joiner.

JOSEPH A. MARUTOLLO, United States Magistrate Judge: