SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
LUBA MOSIONZHNIK,
Plaintiff,
-againstEZRA CHOWAIKI, DAVID E.R. DANGOOR,
TODD HUTCHESON, CHOWAIKI
MOSIONZHNIK GALLERY LTD., ZELCO LTD.,
CHOWAIKI & CO., LLC, JOHN DOE, I-X,
JANE DOE, I-X, and JOHN DOE CORP. I-X,
Index No. 650434/09
Defendants.
X
MEMORANDUM OF LAW OF DEFENDANTS EZRA CHOWAIKI,
DAVID E.R. DANGOOR, AND TODD HUTCHESON IN SUPPORT OF
THEIR MOTION TO DISMISS THE VERIFIED COMPLAINT
J. Joseph Bainton
Carmine J. Castellano
David W. Barron
SMITH, GAMBRELL & RUSSELL,
LLP
250 Park Avenue, Suite 1900
New York, NY 10177
(212) 907-9700
(212) 907-9800 (facsimile)
Attorneys for Defendants
Ezra Chowaiki, David E.R. Dangoor,
Todd Hutcheson, Zelco Ltd., and
Chowaiki & Co. Fine Art Ltd.
TABLE OF CONTENTS
TABLE OF AUTHORITIES FACTUAL BACKGROUND 1
ARGUMENT 2
I.
SERVICE ON CHOWAIKI AND DANGOOR IS IMPROPER
UNDER CPLR 308(2). 2
II.
3
SERVICE ON HUTCHESON IS IMPROPER UNDER CPLR 308(4). CONCLUSION 4
TABLE OF AUTHORITIES
Cases
Gurevitch v Goodman, 269 AD2d 355 [2d Dep't 2000] Page(s)
3, 4
Hanover New England v MacDougall, 202 AD2d 724 [3d Dep't 1994] 4
Marballie v. Lefrak, 201 AD2d 707 [2d Dep't 1994] 4
Wood v Balick, 197 AD2d 438 [1 st Dep't 1993] 4
Statues
CPLR 308(2) 2, 3
CPLR 308(4) 7,3
CPLR 3211(a)(8) 1, 2, 4
Defendants Ezra Chowaiki ("Chowaiki"), David E.R. Dangoor ("Dangoor"), and Todd
Hutcheson ("Hutcheson") (collectively, the "Individual Defendants") respectfully submit this
memorandum of law in support of their motion to dismiss the Verified Complaint as against
them pursuant to CPLR 3211(a)(8) for improper service.
Factual Background
On July 20, 2009, plaintiff commenced this action against the Individual Defendants and
co-defendants Zelco, Ltd. and Chowaiki & Co. Fine Art Ltd. (incorrectly sued herein as
"Chowaiki Mosionzhnik Gallery Ltd." and "Chowaiki & Co., LLC") (the "Gallery") by filing a
summons and verified complaint. (See Affirmation of J. Joseph Bainton, executed on October
13, 2009, Ex. A.) Plaintiff asserted 13 causes of action arising from her allegedly wrongful
termination from employment at the Gallery. (Id.)
On July 28, 2009, a process server delivered a copy of the summons and complaint to a
residence located at 344 Wrights Road, Newtown, Pennsylvania. (Bainton Aff., Ex. B at 1.) The
copy was left with Mindy Schwartz ("Ms. Schwartz"), who is Chowaiki's wife.' (Id.) The
delivery was intended for Chowaiki. (Id.) That same day, the process server also mailed a copy
of the summons and complaint to the same Pennsylvania residence. (Id.)
On August 6, 2009, a different process server delivered a copy of the summons and
complaint to a residence located at 410 West 24 th Street, New York, New York. (Bainton Aff.,
Ex. B at 2.) The process server, while apparently speaking with no one, affixed the copy to the
door of the residence.
(Id) This copy was intended for Hutcheson. (Id.) That same day, the
process server mailed a second copy of the summons and complaint to the same New York,
The process server incorrectly refers to Ms. Schwartz in his affidavit of service as
"Mindy Chowaiki." (See Bainton Aff., Ex. B.)
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New York residence. (Id.) The process server made three prior attempts to serve Hutcheson at
that same address, his purported "dwelling/usual place of abode." (Id.)
On August 11, 2009, the process server delivered a copy of the summons and complaint
to a residence located at 770 Park Avenue, New York, New York. (Bainton Alf., Ex. B at 3.)
The copy, intended for Dangoor, was left with his doorman. (Id.) That same day, the process
server also mailed a copy to the same New York, New York residence. (Id.)
On September 9, 2009, plaintiff filed purported affidavits of service for Dangoor and
Hutcheson. (Bainton Aff., Ex. C.) The next day, plaintiff filed a purported affidavit of service
for Chowaiki. (Id.)
Argument
Plaintiffs alleged service of process on the Individual Defendants is improper pursuant to
CPLR 308(2) and 308(4). The verified complaint should thus be dismissed as against them
pursuant to CPLR 3211(a)(8) for improper service.
I. SERVICE ON CHOWAIKI AND DANGOOR IS IMPROPER
UNDER CPLR 308(2).
Plaintiff's alleged service on Chowaiki is improper because the summons and complaint
was not delivered to a person of suitable age and discretion within New York. Plaintiff also failed
to timely file proofs of service for Chowaiki and Dangoor, thereby making service incomplete.
CPLR 308(2) authorizes service by delivery of process "within the state" to a person of
suitable age and discretion at a specified location with a mailing to the defendant at a similar
specified location. The delivery and mailing must occur within 20 days of each other. (CPLR
308[2].) In addition, CPLR 308(2) imposes a requirement that proof of service must be filed
with the clerk of the court as an additional step in making service "complete." The plaintiff is
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directed to file proof of service within 20 days of whichever step — delivery or mailing — is
performed second. (Id.) Service is complete 10 days after the filing of the proof of service. (Id.)
In this case, plaintiff delivered process to Chowaiki's wife at an out-of-state residence,
and then mailed process to that same address. (Bainton Aff., Ex. B at 1.) Plaintiff thus failed to
comply with CPLR 308(2) by delivering process within New York. (Id.) In addition, plaintiff
was required to file proof of service for Chowaiki by August 17, 2009. (Id.) Plaintiff untimely
filed on September 10, 2009. (Bainton Aff. , Ex. C.) Similarly, plaintiff was required to file
proof of service for Dangoor by August 31, 2009. (Id., Ex. B at 3.) Plaintiff again filed late, this
time on September 9, 2009. (Id, Ex. C.) Service for both Chowaiki and Dangoor is incomplete.
The verified complaint must be dismissed as against Chowaiki and Dangoor.
SERVICE ON HUTCHESON IS IMPROPER UNDER CPLR 308(4).
Plaintiffs alleged service on Hutcheson is improper because plaintiff failed to timely file
proof of service. In addition, plaintiff was not diligent in her efforts to use the personal delivery
method and/or deliver-and-mail method before resorting to the affix-and-mail method.
If service cannot, without due diligence, be made by personal delivery under CPLR
308(1) or by the deliver-and-mail method under CPLR 308(2), a plaintiff may use the affix-andmail method under CPLR 308(4). The two service steps must be performed within 20 days of
each other, and proof of service must be filed within 20 days of the performance of the second of
the two steps. (CPLR 308[4].) Service is "complete" 10 days after the filing of proof of service.
(Id.) Furthermore, "Nile due diligence requirement of CPLR 308(4) must be strictly observed,
given the likelihood that a summons served pursuant to that section will be redelivered."
(Gurevitch v Goodman, 269 AD2d 355, 355 [2d Dep't 2000].) In addition to attempting delivery
at defendant's actual residence, an effort must be made to ascertain defendant's place of
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employment so that delivery to a suitable person can be attempted at the actual place of business.
(See, e.g., Gurevitch, 269 AD2d at 355-56; Hanover New England v MacDougall, 202 AD2d
724, 724-25 [3d Dep't 1994]; Marballie v. Lefrak, 201 AD2d 707, 707-08 [2d Dep't 1994];
Wood v Balick, 197 AD2d 438, 438-39 [1 st Dep't 1993].)
In this case, plaintiff was required to file proof of service for Hutcheson by August 26,
2009. (Bainton Aff. , Ex. C at 2.) Plaintiff untimely filed on September 9, 2009. (Id, Ex. C.)
Service is thus incomplete. In addition, plaintiff is aware that Hutcheson works at the Gallery.
(Id, Ex. A 8 ["Upon information and belief, Hutcheson is currently employed as a Gallery
Director at [the Gallery]"].) However, no effort was made to deliver process to a suitable person
at the Gallery, Hutcheson's actual place of business. Thus, plaintiff was not diligent in her
efforts to use the personal delivery method and/or deliver-and-mail method. The verified
complaint should be dismissed as against Hutcheson.
Conclusion
For the foregoing reasons, the Individual Defendants respectfully request that the Court
dismiss plaintiffs verified complaint in its entirety pursuant to CPLR 3211(a)(8).
Dated: New York, New York
October 13, 2009
Ru s , LLP
SMITH, G
By:
h B nton
me J. Castellano
avid W. Barron
Attorneys for Defendants
Ezra Chowaiki, David E.R. Dangoor,
Todd Hutcheson, Zelco Ltd, and
Chowaiki & Co. Fine Art Ltd.
250 Park Avenue, Suite 1900
New York, NY 10177
(212) 907-9700
(212) 907-9800 (facsimile)
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