Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application: Papers Numbered Plaintiff’s Notice of Motion Affirmation/Affidavit with annexed exhibits 1-2 DECISION and ORDER Upon the foregoing cited papers, the decision on Plaintiff’s motion is as follows: Plaintiff JPMorgan Chase Bank, N.A. (hereinafter “Plaintiff”) brings the instant motion, dated May 24, 2022, seeking an Order (i) directing alternative service upon the Defendant and (ii) extending the time to serve the summons and complaint upon Defendant. Procedural History Plaintiff initiated this action on August 9, 2021, by filing the summons and complaint. According to an affidavit of Mahmoud Nassar, Plaintiff’s process server, service was attempted at Defendant’s residence, an apartment building, on August 21, 2021; September 4, 2021; and September 10, 2021. According to Mr. Nassar’s affidavit, all three attempts at service were unsuccessful as he was unable to gain access to the building through the common door. Annexed as Exhibit “C” to Plaintiff’s motion is a copy of Defendant’s NYS driver’s abstract which states an address of 41 Wellington Court, 1B, the same address where service was attempted. Plaintiff previously brought a motion requesting similar relief in December 2021. By a decision and order dated February 2, 2022, the undersigned granted Plaintiff’s motion to the extent that time to serve Defendant was extended an additional ninety days (90). The branch of Plaintiff’s motion to direct alternative service was denied without prejudice. In the prior decision, the Court noted that Plaintiff’s motion failed to provide any supporting affidavits or evidence that the Plaintiff (i) did not or could not determine the Defendant’s place of business, or (ii) made any attempts to serve the Defendant at her place of business. Therefore, the Court found that the Plaintiff had failed to establish that service pursuant to CPLR 308 would be impractical and denied the request for alternative service without prejudice. Discussion Plaintiff now seeks an order (i) extending the time to serve Defendant and (ii) directing an alternate means of service, to wit, affixing the summons and complaint to the common door of Defendant’s apartment building and mailing a copy of the same to Defendant’s residence.1 Pursuant to CPLR 306-b, a court may, upon good cause shown or in the interest of justice, extend the time for service of the summons and complaint (CPLR 306-b). In making its determination, a court may consider “diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiffs request for the extension of time, and prejudice to defendant” (Leader v. Maroney, Ponzini & Spencer, 92 NY2d 105, 105-106 [2001]). At the onset, the Court notes that Plaintiff made the instant motion on May 24, 2022, some three weeks after the extended time for service expired. In support of its motion, Plaintiff annexes a second affidavit from Mr. Nassar stating that attempts at service was made at Defendant’s residence on March 19, 2022; March 22, 2022; and March 23, 2022. All three attempts were unsuccessful. Plaintiff does not offer evidence of any due diligence that was performed to effectuate service from March 23, 2022, to May 24, 2022, the date the motion was filed. Addressing the Court’s partial denial of the prior motion, Plaintiff argues that service on Defendant’s place of employment would be impracticable. Plaintiff does not provide any evidence or supporting affidavit that the Plaintiff does not know or could not ascertain Defendant’s place of employment. Rather, Plaintiff’s counsel states that any contact with the Defendant at her place of employment would subject the Plaintiff to liability under Fair Debt Collection Practices Act (the “FDCPA”). Plaintiff argues that under the FDCPA, service at Defendant’s place of employment would be seen as a communication with a consumer; and therefore, the Plaintiff should be excused from this requirement. The FDCPA governs communications between debt collectors and consumers. The FDCPA generally prohibits a debt collector from communicating with a consumer in connection with the collection of any debt at the consumer’s place of employment (15 USCA §1692c). “Communication” is defined in the FDCPA as “the conveying of information regarding a debt directly or indirectly to any person through any medium” (15 USCA §1692a[2]). Expressly exempt from the definition of a “debt collector” is “any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt (15 USCA §1692a[6][D]). While Plaintiff’s counsel cites several cases in support of its concern regarding potential liability and the applicability of the FDCPA, each of these cases is clearly distinguishable of the facts and not relevant to the issue of a process server’s exemption. Each of the cases cited by the Plaintiff involve a debt collector who called the debtor at work, left messages for the debtor at work, contacted the debtor’s co-employees at work, or harassed the debtor at work. It is clear these were attempts at “communication” with the “consumer” at work. None of the cases cited by the Plaintiff involve the service of a summons or a judicial subpoena at the debtor’s place of employment. The Plaintiff’s motion does not even address the exception created for process servers under §1692a[6][D] of the FDCPA. Courts have consistently held that the statute clearly provides an exemption for process servers [See Kananavicius v. JPMorgan Chase Bank, N.A., CV 15-1823, 2015 WL 5093050, at *4 [ED Pa Aug. 28, 2015]; Romea v. Heiberger & Assoc., 163 F3d 111, 117 [2d Cir 1998]). Given the exemption, Plaintiffs excuse for failing to attempt service at Defendant’s place of employment is unjustified. Furthermore, the alternative method of service sought by the Plaintiff is to attach the summons and complaint to the common door of Defendant’s apartment building. Service on the common door, in the eyes of the Court, would serve to communicate with far more third parties than service at Defendant’s place of employment. In addition, since this four-story building is a multiple dwelling with likely more than 20 apartments, the chance remains slim that the Defendant would actually receive such service.2 As to ascertaining Defendant’s place of employment, Plaintiff’s counsel’s affirmation in support makes conclusory statements that Plaintiff does not know the place of employment, despite the Court specifically directing Plaintiff’s attention to that requirement in the prior decision and order. The Plaintiff did not submit any affidavit of a person with personal knowledge of whether the Plaintiff has information about the Defendant’s employment. The Court finds it incredulous that Plaintiff — as an original creditor — issued a credit card to the Defendant without some knowledge of the source of the Defendant’s income to pay the credit card. If the Plaintiff had determined that the Defendant is no longer working at the same employer, or if there are other factors involved in the employment status of the Defendant, the Plaintiff should have included those facts in the supporting document attached to the motion. However, none of that was done here; and therefore, the conclusory statement of counsel is not enough to demonstrate that service under CPLR 308 (1), (2), or (4) is not feasible. Plaintiff has failed to establish the need for alternative service. Lastly, Plaintiff requests additional time to serve the Defendant. The Court finds such an extension to be against the interests of justice. In its February 2, 2022, decision and order, the Court granted Plaintiff a ninety (90) day extension to serve the summons and complaint upon Defendant. According to Plaintiff’s affidavit of non-service, attempts at service were made over a five-day period in March 2022 (March 19, 22, and 23). The Plaintiff does not detail any further efforts to serve the Defendant after March 23, 2022, by any other means nor did the Plaintiff apply to the Court for alternative means of service immediately after the unsuccessful attempts. The Plaintiff waited three weeks after the Court’s extension of time had expired before moving this Court for additional time and, alternative means of service. If the Plaintiff had moved in either March or April 2022, any alternative means directed by the Court could have been affected within the original 90-day extension. Instead, the Plaintiff’s delay necessitates the Court to consider a second extension without any explanation from the Plaintiff regarding the delay. Furthermore, since Plaintiffs original motion was granted, the Consumer Credit Fairness Act (the “CCFA”) took effect.3 The CCFA, which became effective May 7, 2022, requires plaintiffs in consumer debt matters to take additional actions and file additional documents and notices when serving a summons and complaint. The Court finds that it would be against the interests of justice for the Court to extend the time for service under the prior requirements. The Plaintiff must now comply with the new requirements of the CCFA. Neither the Plaintiff’s motion nor the summons and complaint give the Court any justification to do otherwise. Accordingly, it is hereby ORDERED that Plaintiff’s motion is DENIED. The foregoing constitutes the Decision and Order of the Court. Dated: July 12, 2022
