In the opening scene of the 2008 “stoner action comedy” Pineapple Express, as Eddy Grant’s “Electric Avenue” pumps out of the car’s stereo speakers, the film’s protagonist, Dale Denton (Seth Rogen), in various disguises serves subpoenas on unsuspecting defendants. A real-world outtake from this film recently played out in the New York County Supreme Court, Commercial Division, in Lenox NY LLC v. Goldman.
The defendant, James Goldman, was alleged to have defaulted on personal guarantees for the payment of rent due to the plaintiff landlord under two commercial leases. Plaintiff commenced the action by notice of motion for summary judgment pursuant to CPLR § 3213 and attempted to serve the defendant at the Pleasant Valley, New York address listed on the guarantees.
When the process server arrived at the Pleasant Valley address on September 29, 2017, the defendant did not answer the door. “Bill” did. According to the process server’s affidavit of service, “Bill” refused to provide his last name, but claimed to be a “friend” of the defendant. A short, slender middle-aged man whose hair color is best described as “shaved,” little else is known about Bill Doe.
The defendant filed an affidavit stating that he does “not know who ‘Bill Doe’ refers to, but it is certainly not me, a member of my family, nor any of my friends, nor anyone employed by me.” The defendant was “never contacted by a person named ‘Bill’ about this action.”
Was service proper?
CPLR 308(2) provides for service upon “a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served,” if followed by a mailing and filing of proof of service. A process server’s affidavit which attests to delivery to “a person of suitable age and discretion” is apparently sufficient to make a prima facie showing of proper service. The burden then shifts to the defendant to submit a “sworn denial of receipt of service” that contains “specific facts to rebut the statements in the process server affidavits.” See Indymac Federal Bank FSB v Quattrochi, 99 AD3d 763 (2d Dept 2012). The matter would then be referred for an evidentiary hearing. Id.
Applying this standard, the court (Sherwood, J.) held that the defendant had failed to rebut the process server’s affidavit of service because the defendant’s affidavit did not contain enough factual detail. In addition, the defendant’s affidavit did not address the process server’s affidavit, but instead focused on whether “Bill Doe” had ever forwarded the service to defendant. The final nail in the coffin was the defendant’s assertion that he was not at home on “August 29, 2017” (a month earlier than the process server’s visit).
Many other defendants have met with similar difficulty in refuting a process server’s affidavit. For example, in Indymac, the agent allegedly served with process swore that she did not recall being served and had no record of being served. However, the disorderly records of the agent’s “Subpoena Case Record” book negated her affidavit and no evidentiary hearing was required. The Second Department also took issue with the defendant’s affidavit in C&H Import & Export, Inc. v. MNA Global, Inc., 79 AD 3d 784, for failing to include an affidavit from the individual allegedly served or a denial that the individual was an agent of the defendant. Therefore, be forewarned—absent facts specifically refuting the process server’s affidavit, such efforts are likely to be futile.