The following papers were read upon this motion: Notice of Motion/Order to Show Cause X Answering Papers XX Reply X Decision/Order Plaintiff, appearing pro se, moves this Court by Order to Show Cause for an Order disqualifying respondents from presiding over any proceeding related to petitioner, decreeing that respondents never obtained jurisdiction over petitioner with regard to Village of Ocean Beach charges, decreeing that arrest warrants from 2017 are not valid court orders, vacating a June 17, 2017 bail order, ordering the return of bail money, and enjoining respondents from taking actions in excess of their jurisdiction. Each of the respondents opposes the requested relief, stating that petitioner has failed to comply with the service requirements of the Order to Show cause; therefore, jurisdiction over the respondents has not been obtained, requiring dismissal of the proceeding. Respondent Hon. William Wexler is an elected Justice of the Ocean Beach Village Court, and respondent Hon. Pamela R. Esterman is an Associate Justice of the Ocean Beach Village Court. The Order to Show Cause issued by the Court (Luft, J.) on August 14, 2017 struck the provision providing for the stay of “all judicial activities on any matter regarding the Petitioner,” and directed service of the supporting papers upon each of the respondents by August 28, 2017. In opposition, the Hon. William Wexler attests in his affidavit that he was never personally served with the Order to Show Cause and supporting papers. Likewise, the Hon. Pamela R. Esterman attests in her affidavit that she was never personally served with the Order to Show Cause and supporting papers. “The method of service provided for in the order to show cause is jurisdictional in nature and must be strictly complied with” (McGreevy v. Simon, 220 AD2d 713, 713 [2d Dept 1995]; see also Matter of Bruno v. Ackerson, 39 NY2d 718 [1976], affg 51 AD2d 1051 [2d Dept 1976]). In this case, the Court issuing the Order to Show Cause deleted the provision providing for overnight service upon each of the respondents, and “ORDERED that personal [ ] service of a copy of this Order to Show Cause together with the papers upon which it is granted be served upon Respondent…on or before the 28th day of August, 2017…” In the case of each respondent, the Court struck the provision for service at each of the respondents’ full-time law offices/places of employment. Apart from that directive, no particular section of CPLR §308, “Personal service upon a natural person,” was specified by the Court. The affidavits of service contained in the Court’s file maintained by the Suffolk County Clerk attest that service upon each of the respondents was made pursuant to CPLR §308 (4) “nail and mail” service, at “Village Court of Ocean Beach, corner of Bay & Bungalow Walks, Box 433, Ocean Beach, NY 11770,” on August 25, 2017, at 4:00 p.m., by affixing a copy of the papers “on the door of the actual place of business, or usual place of abode…and by mailing a copy of the proceeding herein to said person at the address on the date and time as stated above…” The affidavits of service further attest that “[s]ervice was made in the manner stated in this paragraph because deponent was unable, with due diligence, to find the proper or authorized person to be served; or upon a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode as stated above, having visited there at the following dates and times: August 21, 2017 at 11 am, August 22, 2017 at 11 am & August 23 at 11 am.” “The due diligence component of CPLR 308 (4) underscores the legislative preference for in-hand delivery to a person, whether it be the defendant herself or a person of suitable age and discretion at defendant’s home or place of business” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:5). It has been “repeatedly emphasized that the “due diligence requirement of CPLR 308 (4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received”’ (McSorley v. Spear, 50 AD3d 652, 653 [2d Dept 2008] citing Gurevitch v. Goodman, 269 AD2d 355, 355 [2d Dept 2000]). “What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality” (McSorley, supra at 653). The process server’s affidavits do not reflect any attempts to determine and serve the respondents at their respective dwelling places or usual places of abode; therefore, her statement that service was made as it was because she “was unable, with due diligence, to find the proper or authorized person to be served; or upon a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode,” standing alone, demonstrates a lack of due diligence. Moreover, the place where service was attempted, the Village Justice Court for Ocean Beach, is only open on specified days and times that are available on the Incorporated Village of Ocean Beach’s website.1 The current web page states that the court session schedule is “@10:30 am on specified Saturdays throuout [sic] the year in the Village Court House, 157-164 Bay Walk (Bay & Bungalow Walk).” On the same web page, the upcoming court dates and times are listed. Importantly, the Court’s telephone number is prominently displayed at the top of the web page. This Court takes judicial notice of the fact that none of the days that the process server attempted service upon each of the respondents was a Saturday, and the process server does not detail what, if any, efforts she made to ascertain the hours and days of operation of the Ocean Beach Village Justice Court, i.e. calling the Court telephone number. There is no affidavit from the process server annexed to plaintiff’s reply papers offering the slightest explanation of her efforts, or lack thereof, in this regard. Plaintiff’s affidavit in reply is also unavailing. He annexes a printout of the Village Justice Court’s web page as Exhibit A. This web page that was presumably printed at the time he swore to his affidavit (October 10, 2017) does not list the upcoming court dates and times, but the same Court telephone number is listed at the top of the page, and the web page reads in pertinent part that, “Court is in session on specified Saturdays throughout the year at 10:30 AM in the Village Court House at Bay and Bungalow Walks. Please call the Court for dates” (emphasis added). Even accepting plaintiff’s Exhibit A as the available web page in 2017, the Court has noted that the process server attempted service at the Village Justice Court on a Monday, Tuesday and Wednesday at 11:00 a.m., and on a Friday at 4:00 p.m. (August 21, 22, 23, 25 2017), instead of on a day when the Court was likely to be in session (Saturday), and the process server fails to set forth any effort she made to determine which Saturday(s) the Court was in session by calling the telephone number provided specifically to obtain that information. Based upon the foregoing, this Court finds that the process server failed to make genuine inquiries about when the Village Justice Court was in session, and/or the dwelling places/usual places of abode of the respondents; therefore, although three attempts at service were made prior to resorting to “nail and mail” service, the quality of those attempts, made on days when the Court was not in session, is poor (McSorley, supra; see also Mid-Island Mortgage Corp. v. Drapal, 175 AD3d 1289 [2d Dept 2019]; Greene Major Holdings, LLC v. Trailside At Hunter, LLC, 148 Ad3d 1317 [3d Dept 2017]; : Matter of Kader v. Kader 132 AD3d 1376 [4th Dept 2015]; Serraro v. Staropoli, 94 AD3d 1083 [2d Dept 2012]). Accordingly, and because the process server failed to properly serve the respondents, this Court is without jurisdiction to entertain this proceeding; therefore, this proceeding is dismissed. Dated: December 12, 2019 Riverhead, NY FINAL DISPOSITION [X] NON-FINAL DISPOSITION [ ]
