The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8, 9, 10, 14 were read on this motion to SUMMARY JUDGMENT IN LIEU OF COMPLAINT The following e-filed documents, listed by NYSCEF document number (Motion 002) 12, 13, 15, 16, 17, 18, 19, 20, 21, 22 were read on this motion to DISMISS. In early 2019, defendant, Elena Coureau, enrolled her daughter at a school operated by plaintiff, the Montessori at Flatiron LLC, for the 2019-20 school year. In June 2019, Coureau emailed Montessori to notify it that she was withdrawing her daughter for the 2019-20 school year. Coureau told the school that her family had to move on short notice because her husband’s job had been relocated to Connecticut. Montessori wrote back to Coureau, stating that because she had not notified Montessori until three weeks after the student-withdrawal deadline, the school still considered her responsible for paying the remaining tuition balance for the 2019-2020 school year, $12,375. Montessori now moves for summary judgment in lieu of complaint under CPLR 3213 (motion sequence 001), alleging that it is entitled to the $12,375 plus attorney fees as liquidated damages under Coureau’s enrollment contract with the school. Coureau, acting pro se, has filed an affidavit and supporting materials opposing the CPLR 3213 motion on its merits. A week after she filed that affidavit, Coureau also moved to dismiss (motion sequence 002), raising the same merits arguments as she does on motion sequence 001. In motion sequence 002, she also challenges the validity of service of Montessori’s initiating papers on the CPLR 3213 motion. Motion sequences 001 and 002 are consolidated here for disposition. DISCUSSION Coureau challenges this court’s personal jurisdiction due to lack of proper service. Montessori contends this challenge is waived because Coureau raised it in her motion to dismiss, rather than in opposing Montessori’s CPLR 3213 motion. This court is not persuaded. Coureau is representing herself. That Coureau both opposed Montessori’s CPLR 3213 motion and separately moved to dismiss suggests she might not have fully understood the slightly unusual procedural context here. This court concludes that in these circumstances, Coureau’s asserting improper service one week after raising a merits defense did not implicitly waive objections to personal jurisdiction.1 (Cf. HSBC Bank USA, N.A. v. Taub, 170 AD3d 1128, 1130 [2d Dept 2019] [finding waiver where defendant not only opposed plaintiff's motion for judgment, but also cross-moved and appeared 11 times in court through counsel before raising a jurisdictional objection].) This court further concludes that Montessori did not properly serve Coureau. Montessori’s affidavit of service reflects that it attempted to effect service through the two-step leave-and-mail method. The first step under that method is to “deliver[ ] the summons within the state to 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.” (CPLR 308 [2].) Here, Montessori’s process server left a copy of the papers with the doorman of a New York City apartment building in October 2019. (The doorman had indicated to the server that Coureau lived there.) (See NYSCEF No. 8.) Coureau asserts in her motion papers, though, that she had already moved to Connecticut with her family months earlier. (See NYSCEF No. 12 at 1.) And Montessori’s motion papers reflect that Coureau had expressly informed the school that her family would be moving from New York to Connecticut in July 2019. Indeed, it was that very move that led Coureau to withdraw her daughter from the school. (See NYSCEF No. 6.) Montessori does not dispute that it served Coureau at an address where she no longer lived. Instead, it argues merely that serving an individual at her last known address is a reasonable attempt to reach her that does not violate due process. (See NYSCEF No. 15 at 4.) But satisfying the minimum constitutional requirements of due process is not sufficient. Service must also meet the additional conditions of the CPLR (here, CPLR 308). Montessori’s service did not.2 Montessori points out that Coureau received actual notice of the proceeding. But since Montessori failed to comply with the statutory conditions of CPLR 308, the fact that Coureau otherwise received notice of the proceeding is not enough to give this court personal jurisdiction over her. (See Macchia v. Russo, 67 NY2d 592, 595 [1986].) This proceeding therefore must be dismissed for lack of personal jurisdiction.3 Accordingly, it is hereby ORDERED that defendant’s motion to dismiss (motion sequence 002) is granted, and the proceeding is dismissed, with costs and disbursements to be taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further ORDERED that plaintiff’s motion for summary judgment in lieu of complaint under CPLR 3213 (motion sequence 001) is denied as academic; and it is further ordered ORDERED that defendants shall serve a copy of this order with notice of its entry on plaintiff and on the office of the General Clerk (60 Centre Street, Room 119), which is directed to amend its records accordingly; and it is further ORDERED that notice of entry may be served by mail or overnight delivery service, with defendants to e-file a copy of notice of entry (and accompanying affidavit(s) of service) on NYSCEF once filing of notices of entry in pending nonessential matters is again permitted by order of Chief Administrative Judge Lawrence Marks. Dated: May 15, 2020
