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Pollack v Haberman 2011 NY Slip Op 32508(U) September 22, 2011 Supreme Court, New York County Docket Number: 106859/2011 Judge: Anil C. Singh Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK YORK COUNTY
Index Number : 106859/201I POLLACK, JOSEPH
vs

PART

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HABERMAN, ALAN
Sequence Number : 001
SUMMARY JUDGMENT IN LIEU COMPLAINT
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INDEX NO.
MOTION DATE

MOTION SEQ. NO.

The tollowing papers, nummrea

-I 10

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IIIUUVII

Notice of MotlonlOrdsr to Show Caume
Answering Affldavlts Replying Affldavlts

-Affldavitr - Exhlblb

- Exhibit8

I No(.)* I Noh).
IN O W

Upon the foregoing papew, It io ordered that this rnotlon is

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.....................................................................

2. CHECK AS APPROPRIATE:

3.

........................... MOTION IS: 0GRANTED 0DENIED GRANTED IN PART 0OTHER SUBMIT ORDER CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER uDO NOT POST 0FIDUCIARY APPOINTMENT REFERENCE

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CASE DISPOSED

NON-FINAL DISPOSITION

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SUPREME COURT OF THE STATE OF NEW Y O N COUNTY OF NEW YOlZK: PART 61
JOSEPH POLLACK,

Plaint iff, -against-

DECISION AND ORDER
Index No.

ALAN HABERMAN,

Defendant.

HON. ANIL C. SINGH, J.:

Plaintiff moves for summary judgment in lieu of complaint pursuant to CPLR
32 13, contending that defendant defaulted in the payment of two promissory notes.

NEW YORK COUNTY CLERK'S OFFICE

Defendant opposes the motion. Plaintiff Joseph Pollack states in a sworn affidavit that this action was commenced to recover amounts due on two promissory notes made by defendant Alan Haberman. The notes were given in connection with loans that he made to defendant and reflect the amount of money loaned - specifically, the sum of $100,000 in January
2007 and the sum of $200,000 in June 2008. Plaintiff asserts that, despite "numerous"

demands for payment of the principal amounts of the notes, defendant has failed to pay any part of the principal amounts due. Plaintiff contends that a total amount of
$100,000 and $200,000 is now due on the notes. He asks the court to award summary

judgment to him in the amount of $300,000. Copies of the notes are attached as exhibits to the summons and notice of
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motion.
"A plaintiff moving for summary judgment in lieu of complaint pursuant to

CPLR 32 13 based on a promissory note establishes prima facie entitlement to

judgment as a matter of law by submitting proof of the defendant's execution of the note and the defendant's default in making payments pursuant to the note" (Cutter

Bslwiew Cleaners, Inc, v. $Dotless $hirts. Inc,, 57 A.D.3d 708, 709 [Zd Dept., 20081
(internal citations omitted)). "Once the plaintiff establishes its prima facie entitlement to judgment as a matter of law, the burden shifts to the defendant to establish, by admissible evidence, the existence of a triable issue with respect to a bona fide
defense"

(m) quotation marks and citation omitted). (internal

- .

The Court finds that the facts set forth in plaintiffs sworn affidavit, and the

promissory notes attached to the affidavit, are sufficient to make out a prima face case
that defendant executed the note and defaulted (Alard. LLC v, Weiss, 1 A.D.3d 131, 131 [lStDept.,20031). Defendant raises lack of personal jurisdiction as an affirmative defense, He asserts that the summons and motion were not served properly pursuant to the CPLR. Plaintiff exhibits the sworn affidavit of process server Mark Avery, who states that he attempted to serve defendant Alan Haberman personally at his actual residence at 11 Mill Pond Road in Sherman, Connecticut. The process server states that he tried calling from the security call box at the community entrance and knocking on the door
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of the residence. According to the process server, he made seven attempts to gain

admittance. He went to the residence at various times of day on June 14,21,24,25,

27, and 28,201 1. When he received "no answer to repeated knocks on the residence
door" on June 28,201 1, he "firmly affixed" the documents "conspicuously on the front door." The process server then mailed a copy of the documents to defendant. In addition, plaintiff tried to serve defendant at his actual place of business. Defendant exhibits the sworn affidavit of process server Otis Osborne. He states that
on June 16,201 1, he left a copy of the RJI, Summons and Notice of Motion of

Summary Judgment with Ada Sweeney, an administrative assistant, at Gala Resources,
12 12 Avenue of the Americas on the tenth floor.

Defendant asserts that the tenth floor of 1212 Avenue of the Americas was never his actual place of business, nor was it his place of business at any time whatsoever. Prior to March 1, 201 1, he had an office with Gala Resources on the sixth floor of 1212 Avenue of the Americas. Defendant contends that he left Gala Resources on March 1, 20 1 1, and never had an office with them at any location subsequently, including - but not limited to - the tenth floor of 1212 Avenue of the Americas. With respect to the "nail and mail" service at his residence, defendant points out that the process server was "buzzed into" the community and knocked on the door only on two occasions. If the process server could gain admittance on two occasions, defendant questions why the process server would have failed to gain admittance on

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five other occasions. According to defendant, the envelope that w s mailed by the a process server does not contain a postmark. Finally, defendant states that "to the best
of my knowledge and belief, there was never a copy posted to my door." The proponent of a motion for summary judgment in lieu of complaint bears the

burden of establishing that the defendant was properly served with the motion (Cadle

CQ, Ayala, 47 A.D.3d 919, 920 [Zd Dept., 20081). v.
If service cannot, with due diligence, be made by the personal delivery method
of CPLR 308( 1) or by the "deliver and mail" method of CPLR 308(2), a plaintiff may use the "affix and mail" method of CPLR 308(4). "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" (McSorjey v. Speaq, 50 A.D.3d 652,
653 [2d Dept., 20081, quoting Gurevitch v, Goodman, 269 A.D.2d 355 [2d Dept.,

20001). A failed attempt to make delivery at defendant's residence may not qualify as

due diligence unless the process server has also tried to ascertain defendant's place of employment for potential delivery to that location (See, for example, Q'Connell v.

m,27 A.D.3d630 [Zd Dept., 20061).
Here, the Court finds that the process server's affidavits establish the requisite "due diligence" and, therefore, proper service under CPLR 308(4). We find further that defendant's conclusory and self-serving affirmations are insufficient to rebut the prima facie evidence of proper service. "A court need not conduct a hearing to
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determine the validity of the service of process where the defendant fails to raise an
issue of fact regarding service" (Beneficial HQmeQwner Service Corp. v, Girault, 60

A.D.3d 984, 984 [2d Dept., 20091). Next, we turn to defendant's contention that plaintiff never demanded payment of the entire indebtedness. Defendant's contention is meritless for two reasons. First, the notes on their face expressly waive LLpresentment payment." Second, plaintiff was entitled to for bring a motion for summary judgment in lieu of complaint without a prior demand for payment on'thepromissory notes as the notes do not contain any time for payment

(Gullery v; Imburgio, 74 A.D.3d 1022, 1023 [2d Dept., 20101).
For the above reasons, it is hereby
ORDERED that the motion for summary judgment is granted, and the Clerk is
directed to enter judgment in favor of plaintiff and against defendant in the amount of
I

$300,000, together with interest at the statutory rate as calculated by the Clerk from the

date of entry of judgment, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs.

FILED
SEP 22 2011

The foregoing constitutes the decision and order of the court.



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