Papers Numbered Defendant’s Order to Show Cause 1 Plaintiff’s Opposition, Exhibits Attached 2 DECISION AND ORDER Upon the foregoing cited papers, the Decision/Order on the motions is as follows: DECISION I: Procedural History This action was brought by Unifund CCR, LLC (hereinafter, Plaintiff) against Dorothy S. Alencastro (hereinafter, Defendant) with the filing of a Summons and Complaint on or about February 28, 2020. On or about December 15, 2021, after failing to interpose an answer, a default judgment was entered in favor of Plaintiff and against Defendant in the amount of $6,828.50. On or about January 10, 2024, Defendant filed an Order to Show Cause seeking to vacate the judgment pursuant to CPLR §5015. On February 28, 2024, the matter appeared before Your Honor and Plaintiff filed opposition to Defendant’s Order to Show Cause. The Court took the motion on submission and issued a decision holding the Defendant’s Order to Show Cause in abeyance pending the outcome of a Traverse Hearing. Said Traverse Hearing was held on April 16, 2024 before Your Honor. II-A: Plaintiff’s Case At the hearing, Plaintiff called the Defendant and the Process Server, John Olivieri, as witnesses. Aside from confirming that 233 Green Valley Road was Defendant’s address at the time of the alleged service, most of Defendant’s testimony on direct examination regarded her age and physical appearance at the time of the alleged service and how there were substantial differences between her appearance and the description of the individual allegedly served according to Mr. Olivieri’s Affidavit of Service. The Defendant vehemently denied being personally served. Notably, although she stated that at the time of the alleged service she lived with her husband and young daughter, Defendant was never asked about any potential visitors, relatives, babysitters, or other caretakers that may have been present at the time of service that did not necessarily reside at the location. Furthermore, Defendant was never asked about her work schedule, despite, the fact that she provided work as a potential whereabout at the time of alleged service in her Order to Show Cause. Process Server, John Olivieri, testified that he has worked as a Process Server since 2014. His testimony indicated he had no independent recollection of the particular service in this case. Instead, Mr. Olivieri’s testimony stemmed from his review of the Affidavit of Service, a document he executed shortly after the actions described were allegedly performed. The Affidavit of Service states that on March 9, 2020 at 8:52 AM, Mr. Olivieri was present at 233 Green Valley Road, Staten Island, New York 10312 and he served the Summons and Complaint on the Defendant by Substituted Service by serving an individual of suitable age and discretion, identified as Jane Doe. The Affidavit states that said individual stated they reside at the location and was a white female between the ages of 45-55 years old, 5’4″ to 5’6″ tall, weighing 180-200 pounds, and had gray hair. Additionally, the Affidavit states that on March 9, 2020, Mr. Olivieri mailed the Summons and Complaint to the Defendant at the same address of the alleged substituted service. However, Mr. Olivieri stated that despite his attestation in the Affidavit, he did not personally mail the documents, rather, mailing was performed by the process serving company, ABC Legal. Plaintiff did not present any additional witness from the process server company to describe the mailing. Plaintiff did not admit any evidence regarding Mr. Olivieri’s license as a process server, any log books, or other documentation associated with the alleged service. II-B: Defendant’s Case Defendant did not present any witnesses or provide additional testimony on her own behalf. Defendant maintains that she did not receive service personally or by mail. III: Decision The Court finds that Plaintiff failed to meet its burden to prove proper service and therefore, the Complaint is hereby dismissed. The burden of proving whether personal jurisdiction was acquired over a defendant rests with a plaintiff. Absent sworn specific factual allegations to the contrary to refute it, the process server’s affidavit of service constitutes rebuttable prima facie evidence of proper service. See Federal Natl. Mtge. Assn. v. Castoldi, 187 A.D.3d 988, 989 (2d Dep’t 2020); Nationstar Mtge., LLC v. Eihnorn, 185 A.D.3d 945, 946 (2d. Dep’t 2020). An evidentiary traverse hearing to determine the validity of service of process is required when a defendant asserts specific, and detailed facts to rebut the statements in the process server’s affidavit. One West Bank FSB v. Perla, 200 A.D.3d 1052, 2055 (2d. Dept 2021). When a defendant seeks to vacate a default judgment by raising a jurisdictional objection, the court is required to resolve the jurisdictional question before determining whether to vacate the default judgment. Canelas v. Flores, 112 A.D.3d 871 (2d. Dep’t 2013); Emigrant Mtge. Co. v. Westervelt, 105 A.D.3d 896, 897 (2d. Dep’t 2013); Roberts v. Anka, 45 A.D.3d 752, 753 (2d Dep’t 2007). Pursuant to CPLR §2103(a), service of process can be performed, except where otherwise prescribed by law or court order, by any person that is not a party to the action that is 18 years or older. CPLR §308(2) states in sum and substance that personal service upon a natural person shall be made by delivering 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 and by subsequently mailing the summons by first class mail. Ineffective service of process renders all subsequent proceeding a nullity. Everbank v. Kelly, 203 A.D.3d 138, 143 (2d. Dep’t 2022). The law is generous as to who can serve process in a civil action. However, for those who earn a living serving process, the law establishes several requirements. First, all Process Servers engaging in service of process on five or more occasions over the course of one year must be licensed by the NYC Department of Consumer Affairs. New York City Code §20-403(a); New York City Code §20-404(a). Furthermore, when called upon to testify at a Traverse Hearing, Process Servers are required to bring all records in their possession relating to the service in that matter, including their process server license. 22 NYCRR §208.29. These records include but, are not limited to, their license, logbook, and GPS records. NY CLS Gen Bus §89-cc; 6 RCNY 2-233b. Historically these rules were designed to prevent the pitfalls of dishonest service practices. Nevertheless, service by an unlicensed process server does not require immediate dismissal so long as the service was otherwise performed properly in accordance with the CPLR. Feierstein v. Mullan, 120 Misc.2d 574, 575 (App. Term 1st Dept. 1983). Here, as the Defendant objects to jurisdiction, the Court must first analyze whether proper jurisdiction was obtained over the Defendant prior to ruling on Defendant’s Order to Show Cause. The Court first looks at the testimony of Process Server, Mr. Olivieri. At no point during his testimony did Plaintiff ask Mr. Olivieri to provide any information about his license as a process server. There is no evidence before the Court as to when or where he obtained that license or even the license number. Moreover, he did not testify as to whether he had a Process Server license at the time of the alleged service. Mr. Olivieri did not produce any license in court and Plaintiff did not enter any license into evidence. The only testimony before the Court is that Mr. Olivieri was a Process Server since 2014. As stated above, Mr. Olivieri was required to create, maintain, and produce documents relating to said service before the Court. Aside from the single photo of the Defendant’s residence and the Affidavit of Service, there was no documentation, such as GPS records or logbook entries, brought before the Court. While there is no steadfast rule that the failure to produce these documents automatically invalidates service, the failure tends to reflect poorly on whether the alleged substituted service was performed correctly. Any implicit benefit given to the testimony of a licensed Process Server is aborted when that Process Server does not demonstrate that he followed all of the applicable rules and procedures. While the Court believes Mr. Olivieri testified credibly, the lack of proper questioning leaves the Court wanting for the requisite information to meet the standard of proof for proper service. As the law allows any non-party over the age of 18 to serve process, the Court merely looks at Mr. Olivieri’s testimony as that of a lay-person. In support of its argument that service was proper, Plaintiff relies on a few main points. First, Plaintiff relies on the presumption given to the Affidavit of Service. Next, Plaintiff argues that any disparities in the description of the individual served with the physical features of the Defendant are minor discrepancies. Lastly, Plaintiff argues that because Defendant languished in opposing the wage garnishment, the Defendant clearly was aware of the debt and thus, waived, any challenge to jurisdiction pursuant to Calderock, Joint Ventures, LP v. Mitiku, 45 A.D.3d 452 (2d. Dep’t 2007). First, the Court agrees that the Affidavit of Service does provide a presumption of valid service. However, that presumption is rebuttable. Here, as will be discussed further below, the Affidavit of Service was rebutted with the Process Server’s own testimony. Second, the comparison of the physical features of the Defendant to the individual allegedly served are irrelevant. While it may be Defendant’s understanding as a pro se litigant that she must be personally served, Plaintiff should know that personal service is not a requirement. Thus, it does not matter whether the person served did or did not look like the Defendant despite Plaintiff’s apparent argument that the Plaintiff was personally served, a direct conflict to the Process Server’s Affidavit of Service. The more important inquiry, one that was not explored by Plaintiff, was whether anyone that may have been at the location, even temporarily, could have matched that description. Lastly, Plaintiff’s argument regarding any waiver of a jurisdictional defect is inaccurate. In addition to two months of wage garnishments being dramatically short of any period of time the Courts have determined to be sufficient to fit the substantial period of time required for waiver, it has been determined that waiver does not apply where a defendant’s only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction. HSBC Bank USA, N.A. v. Whitelock, 214 A.D.3d 855, 856-857 (2d. Dep’t 2023) quoting Cadlerock Joint Venture, L.P. v. Kierstedt, 119 A.D.3d 627, 628 (2d. Dep’t 2014). Thus, as Defendant made no appearance in this matter other than an Order to Show Cause to vacate the default judgment for lack of jurisdiction, Plaintiff’s waiver argument does not apply. Above all, service procedures require strict compliance. Thus, the Court looks to one glaring issue with Mr. Olivieri’s testimony and the Affidavit of Service. The Affidavit of Service indicates that Mr. Olivieri personally performed the requisite mailing to the Defendant after the alleged service on a person of suitable age and discretion. Mr. Olivieri’s testimony however, was that he did not personally perform that mailing. Instead, Mr. Olivieri testified that the process serving company, ABC Legal, handled the mailing. As Plaintiff did not call any witness to discuss the mailing, there is no credible evidence before this Court that said mailing was ever done. Despite what it states on Mr. Olivieri’s Affidavit of Service, he has no personal knowledge of the mailing allegedly performed. As the mailing is a requirement of service, the Court finds that Plaintiff has failed to meet its burden that proper service was performed. IV: Conclusion Based on the foregoing: As improper service is a jurisdictional defect and all subsequent proceedings are a nullity, the Court hereby finds that jurisdiction was not obtained over the Defendant and that all subsequent proceedings are null and void. All filed motions, including Defendant’s Order to Show Cause, are dismissed as moot. Accordingly, Plaintiff’s complaint is hereby dismissed. ORDERED: The Default Judgment entered against Defendant is hereby vacated and case is immediately restored to the trial calendar. ORDERED: This matter is hereby dismissed. ORDERED: All liens, judgments, and/or wage garnishments are lifted immediately and any funds garnished from Defendant are to be returned forthwith to Defendant within 60 days of this Order. Failure to adhere to this Order may result in Contempt. ORDERED: This matter has an accompanying Turnover matter, Index Cv-003728-23/RI, Unifund CCR, LLC. V. Chase Bank, Wilmer F. Alencastro, and Dorothy S. Alencastro. As the instant matter is hereby dismissed, the Court will issue a separate Order on that case. This constitutes the Final Decision and Order of the Court. Dated: April 30, 2024
