Opinion
011148/2007.
Decided April 8, 2008.
The attorney for the plaintiff is: Arent Fox, LLP, by Mitchell D. Cohen, Esq., New York, NY.
Ira Levine, Esq., Great Neck, NY, for Defense.
DECISION AFTER TRAVERSE HEARING
Plaintiff was granted a judgment by default against defendants John DeJohn ("DeJohn"), Manor East of Massapequa, LLC ("Manor East") and 201 Jerusalem Avenue, Massapequa, LLC ("201 Jerusalem") by order dated August 22, 2007. Defendants did not appear in the action because they claim they were not served with the summons and complaint.
Defendants moved by Order to Show Cause dated October 31, 2007 to vacate the default judgment pursuant to CPLR 5015(a) and CPLR 3211(a)(8), upon the grounds that the court never acquired personal jurisdiction over them. This court by order dated January 3, 2008, set the matter down for a traverse hearing on the issue of whether defendants were served with process. The hearing was held on February 22, 2008.
The summons and complaint were allegedly served by Jose Oquendo on June 29, 2007, at approximately 12 noon. Mr. Oquendo allegedly delivered copies of the papers directly to John DeJohn at the Manor East catering facility, which is located at 201 Jerusalem Avenue, Massapequa, New York. The three affidavits of service uniformly describe the person served, purportedly Mr. DeJohn, as having black hair, brown eyes, being approximately 44 to 54 years of age, being between 5' 11" and 6' 2" tall, and weighing between 240 to 275 pounds.
In reality, Mr. DeJohn's physical appearance is completely inconsistent with the individual described. Mr. DeJohn is 73 years old. He has gray hair, a beard, green eyes, is 5' 6" tall and weights 175 pounds. He appeared and testified at the traverse hearing. There is no dispute that John DeJohn was never served by Mr. Oquendo.
At the hearing, plaintiff asserted that Mr. Oquendo actually delivered the papers to Richard Bivona, an associate of Mr. DeJohn's, and that Mr. Bivona falsely identified himself as Mr. DeJohn.
The traverse hearing was held more than eight months after the summons and complaint were allegedly served on June 29, 2007. Prior to the hearing, plaintiff's counsel had Mr. Oquendo serve trial subpoenas on Mr. Richard Bivona on February 6, 2008 and, again, on February 16, 2008 enabling the process server to take a fresh look at Bivona and the layout of the catering facility where process was allegedly effected. At the time of the second service, Bivona said to him, "You know they're going to make you testify", and Oquendo responded, "I know."
At the hearing, the process server testified to serving a man he was led to believe was DeJohn. He had been shown into a back office area of the catering facility where a man sat at a desk. He asked the man he was shown whether he was DeJohn and that man nodded affirmatively. He stated that he now knows that the man he served was not John DeJohn, but was actually Bivona. After what he believed to be in personam service on DeJohn and on DeJohn on behalf of the LLC, copies of the summons and complaint were mailed to the home and place of business of DeJohn.
The description of the person served is obviously not DeJohn. More importantly, it does not fully describe Richard Bivona who appeared and testified at the hearing. Bivona is bald (shaved head), and the picture on his New York State Learner's Permit issued March 19, 2007, a few months before June 29, 2007, reflects his bald or shaved head. Bivona testified he was not present on the day of the alleged service at the catering facility, and would not have been there until after 3:00 P.M. in the summer, spending his time managing another restaurant, Still Waters, in the morning. He previously told the plaintiff's lawyer he had been out of state and could prove it by plane tickets. This claim never came to fruition, but he did not deny making that statement to plaintiff's counsel.
The process server testified that Bivona (who he says he described in the affidavit of service) must have shaved his head at some time thereafter. He stated he recalled his hair being short and consistent with a person who was balding. He also testified that when he served Bivona on two subsequent dates, in February of 2008, that the person he served was the same person he had served when he had been led to believe he was serving DeJohn.
The information he placed on the affidavit of service was based on his assumption of height and weight because that person never stood up. He also failed to notice any jewelry on that person (did not put it in his notes because jewelry could always be removed). Bivona wears an earring.
In the affidavit of service for June 29, 2007, whereby Oquendo believed to be serving DeJohn but now contends was Bivona, the person's hair is described as black. The balance of the description in the affidavit of June 29, 2007 matches that of February 6, 2008 and February 16, 2008, except for the hair. The hair is now described as "black/gray" (there is no "check off" for bald).
When Oquendo served the summons and complaint on June 29, 2007, he presented to the person served, who he now claims is Bivona, but which Bivona denies, a document to be signed by the person served. Exhibit A. Oquendo filled out the top, filling in name of person served, date, day and time, then, next to the pre-printed words "I admit and received legal papers," is a written signature. There is no doubt that the name represented by the signature is Richard Bivona not John DeJohn. Bivona agrees it is his name, but denies signing it and also that he has never been asked to sign anything by Oquendo. Oquendo states he handed the papers to the man he thought was DeJohn, who proceeded to sign the papers holding them in his hand, not resting them on any hard surface.
The court has been given copies of Richard Bivona's signature on checks (Exhibits 8A, 8B), which resembles the signatures on Exhibit A and his driving permit (Exhibit B), and a "Consent of Members of 2001 Jerusalem Avenue, Massapequa, LLC" form (Exhibit 6), which bears Mr. Bivona's signature and relates that he is signing as "Manager" of the LLC. The word Manager is typed next to the space that says "Title." Bivona admitted to signing it, but denies he has or had any position with the LLCs. The signatures on Exhibit 6 and Exhibit B more clearly resemble the Bivona signature that appears on Exhibit A, the form agreeing to service of the papers.
Mr. Oquendo described the hair on the person he served on June 29, 2007 as similar to that of defense counsel. The hair of defense counsel did not resemble the shaven head of Bivona. Would it resemble Bivona's hair if he had not recently shaved his head, is impossible to determine.
Exhibit A, the document allegedly given to DeJohn to sign on June 29, 2007, but which bears a signature of a Richard Bivona, is of compelling interest. Assuming for the moment its authenticity, what reason would the process server have to sign the name of a different man on the affidavit on June 29, 2007? A date on which he believed he served DeJohn?
Bivona, on the other hand, would have a reason not to sign DeJohn's name to avoid committing a forgery. Of course, if the document was not created until after the motion to vacate the default had been filed, that would dramatically undermine the credibility of plaintiff's witness. There was no challenge made to the veracity of Exhibit A by defendant who was the party that introduced it into evidence.
The court accepts Mr. Oquendo's testimony that he served Richard Bivona rather than John DeJohn on June 29, 2007.
John DeJohn testified Bivona has authority to accept service on behalf of the LLCs. He denies ever receiving service by mail at either his office or residence. The affidavit of service of mailing is dated July 20, 2007, which is twenty-one days after the alleged in personam service.
He testified he first learned of the lawsuit sometime in October. He was shown Exhibit 5 for ID, a cover letter and copy of the judgment. He denied receiving it, or if he did, he gave it to his lawyer.
The time of process on June 29, 2007 is 11:59 A.M. Bivona testified that the office hours at the catering facility are printed on the front door and say "Monday — Friday, 1:00 P.M. — 9:00 P.M. ." Therefore, Oquendo should not have been able to gain entrance when he claimed he perfected service. The sign on the door is proof of nothing.
The question thus becomes, did the court obtain jurisdiction over John DeJohn and/or the LLCs when an admittedly different person was served and that other person led the process server to believe he was the intended target of the process?
An LLC may be properly served by personally serving a member of the limited liability company if the management of the LLC is vested in its members, or by serving any manager of the LLC if management of the LLC is vested in one or more of its managers. CPLR 311-a (a) (i and ii). Thus, plaintiff argues that service on Bivona who is designated a "Manager" in Exhibit 6, was service on the LLCs. Furthermore, Bivona signs checks on behalf of Manor East. Exhibits 8A and 8B. These exhibits alone do not prove Bivona is authorized to accept service under CPLR 311-a. However, DeJohn testified that Bivona was authorized to accept service for the LLCs.
Plaintiff further argues that Bivona was served with a subpoena duces tecum for business records and, if he had responded, they would have proven Bivona's role in the LLCs. The court has never heard an argument based, not on what evidence a party has, but on what evidence the party says it would have had if the adversary had cooperated.
Plaintiff's counsel also points out that Bivona lied to counsel when he told counsel he was out of state when the process was served in June of 2007. When asked why he did that, he stated "he liked sparring" with counsel. Even if Bivona was not authorized to accept process, plaintiff argues that the acts of Bivona resulted in jurisdiction being obtained over the LLC.
Plaintiff's counsel relies on Fashion Page, Ltd. v. Zurich Ins. Co., 50 NY2d 265, 272 (1980), whereby the Court of Appeals stated (in referring to CPLR 311 (1)), "that the purpose of the statute is to give the corporation notice of the commencement of the suit." Id. at 271. A process server may always serve a person specifically named in the statute, but if the corporation has established internal policies for the accepting of service, the process server cannot be expected to be aware of such practices and is lead by the statements and/or directions of corporate employees. In Fashion Page, the process server was directed to a person, the executive secretary to the vice-president, who agreed to accept service (I'll take it.) She gave the process to her boss. It was agreed that she was not a managing agent nor formally authorized to accept service. The court stated that "[i]n such circumstances if service is made in a manner which objectively viewed, is calculated to give the corporation fair notice, the service should be sustained." Id.
The defendant argues that service on Mr. Bivona cannot qualify as service on Mr. DeJohn, and, furthermore, that the evidence as adduced does not support a finding that, in fact, Mr. Bivona was served on June 29, 2007.
Plaintiff argues that not only must service be sustained against the LLCs, but against Mr. DeJohn as well. He argues that CPLR 5015(a) only authorizes relief from a judgment "upon such terms as may be just." He argues that "in light of the brazen and admitted fraud perpetrated on the process server and plaintiff by Bivona and DeJohn in order to avoid service" such relief should not be granted. Based on the actions of Bivona, plaintiff argues that "the only reasonable inference" that the court can draw is that DeJohn acted in concert with Bivona in helping DeJohn avoid service.
Case law is not so flippant in drawing such inferences. There is a difference in a misrepresentation as to authority to accept service and misrepresentation as to identity of the party to be served. CPLR 308(1) requires service of process upon the person to be served (the exceptions are not applicable to our facts). That obviously did not happen on June 29, 2007. The plain language of the statute cannot be ignored nor is it to be modified "by judicially engrafted exceptions to CPLR 308(1)." Dorfman v. Leidner, 76 NY2d 956 (1990). In Dorfman employees of a doctor's office had informed a process server they could accept service and the doctor would not come to the reception desk.
The facts of Dorfman differ from those in our case. Our facts, as accepted by the court, reflect a misrepresentation of identity, not of authority to accept service. This is important because it reflects an intent, an affirmative intent, to evade or refuse service. When that occurs, the court should, and this court would, find an exception to CPLR 308(1). However, there is no evidence that Mr. DeJohn was a party of this intent to evade service.
Mr. Bivona apparently considers himself a "player." He played with the process server in pretending to be DeJohn. He played with the lawyer when he told him he was out of the country at the time process was served and would produce airline tickets. Mr. Bivona is not the most credible person to have testified before this court. However, there is no evidence that DeJohn knew of Bivona's actions at the time they occurred. See Claude v. Adler, 146 AD2d 598, 599 (2d Dept. 1989). Jurisdiction may be invoked by service upon an imposter, but plaintiff seeking to take advantage of that theory must show defendant was in some way aware of the misrepresentation.
The court finds John DeJohn was not served with the summons and complaint, and that plaintiff has not proved that DeJohn sought to evade service through the acts of Bivona, or otherwise. The court never obtained personal jurisdiction over DeJohn, and it is, therefore, directed that the judgment against John DeJohn is vacated, and the action is dismissed against him without prejudice.
The court finds that Richard Bivona accepted service for each of the LLCs on June 29, 2007. The service as to John DeJohn is void, but service as to the LLCs was valid. Bivona was authorized to accept service for the LLCs, he has listed himself as a manager of the LLCs, and that conclusion is strengthened by the fact that he has signed checks on their behalf. The motion to vacate the judgment against the LLCs, Manor East of Massapequa, LLC, d/b/a Manor East, and 201 Jerusalem Avenue, Massapequa, LLC, is denied and the judgment entered remains in full force and effect. The judgment against the LLCs remains and plaintiff may proceed against them.