State v. Konikov

182 A.D.3d 750

122 N.Y.S.3d 719

STATE of New York, Respondent,

v.Aaron KONIKOV, Doing Business as Kinder World, Appellant.

528735

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 14, 2020

Decided and Entered: April 9, 2020

Steven Greenfield, West Hampton Dunes, for appellant.

Letitia James, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

The Office of Children and Family Services (hereinafter OCFS) imposed a civil fine of $213,500 on defendant for continuing to operate an unlicensed day care center between August 2013 and April 2015 in the Village of East Hills, Nassau County after OCFS had directed it to cease and desist (see Social Services Law § 390[2][a] ; 18 NYCRR 418–1.15 [a][1] ). Defendant unsuccessfully challenged the fine in a proceeding pursuant to CPLR article 78, and OCFS thereafter sought plaintiff's assistance in recovering the fine. After defendant failed to respond to plaintiff's demand for payment, plaintiff commenced this action in Albany County to recover the fine. Defendant answered asserting several affirmative defenses, including that plaintiff did not have standing and that personal jurisdiction was never acquired over him based upon defective service, and submitted a change of venue request. Defendant then moved to dismiss on those grounds¹ and plaintiff cross-moved for summary judgment, opposing a venue change. Supreme Court denied defendant's request for a venue change and his motion for dismissal of the complaint and granted plaintiff's cross motion for summary judgment. Defendant appeals.

We affirm. As a threshold matter, contrary to defendant's claim, plaintiff properly brought this action to recover the fine that defendant owed to OCFS (see Excess Line Assn. of N.Y. [ELANY] v. Waldorf & Assoc. , 30 N.Y.3d 119, 123, 65 N.Y.S.3d 85, 87 N.E.3d 117 [2017] ; Matter of New York State Bd. of Regents v. State Univ. of N.Y. , 178 A.D.3d 11, 16–17, 111 N.Y.S.3d 724 [2019] ). The Legislature has specifically authorized OCFS to request the Attorney General to commence a civil action to recover unpaid fines due to OCFS (see Social Services Law § 390[11][b][ii] ), as OCFS requested here. Further, the Attorney General is empowered to "prosecute and defend all actions and proceedings in which the state is interested" ( Executive Law § 63[1] ; see Waldman v. State of New York , 140 A.D.3d 1448, 1449, 34 N.Y.S.3d 680 [2016] ). OCFS is a state agency (see Executive Law § 500 ; State Finance Law § 18[1][a] ; Matter of Metacarpa v. Johnson , 268 A.D.2d 938, 939, 702 N.Y.S.2d 673 [2000] ) and, in the absence of any statutory restrictions, it was appropriate that this action to recover fines due from defendant to a state agency was commenced in the name of the state. Plaintiff demonstrated both the capacity and standing to bring this action (see Excess Line Assn. of N.Y. [ELANY] v. Waldorf & Assoc. , 30 N.Y.3d at 123, 65 N.Y.S.3d 85, 87 N.E.3d 117 ; New York State Bd. of Regents v. State Univ. of N.Y. , 178 A.D.3d at 16–17, 111 N.Y.S.3d 724 ). Defendant's related claim that OCFS never requested assistance from the Attorney General in writing is unpreserved, as it was raised for the first time in its reply papers on its motion (see Divito v. Fiandach , 160 A.D.3d 1356, 1359, 76 N.Y.S.3d 290 [2018] ; Oglesby v. Barragan , 135 A.D.3d 1215, 1216, 24 N.Y.S.3d 770 [2016] ) and, in any event, the statute contains no such requirement (see Social Services Law § 390[11][b][iii] ).

Supreme Court properly rejected defendant's affirmative defense of lack of personal jurisdiction due to inadequate service.² "[B]ecause service of process is necessary to obtain personal jurisdiction over defendants, courts require strict compliance with the statutory methods of service" ( Cedar Run Homeowners' Assn., Inc. v. Adirondack Dev. Group, LLC , 173 A.D.3d 1330, 1330, 102 N.Y.S.3d 740 [2019] [internal quotation marks and citations omitted] ). Plaintiff effected service pursuant to CPLR 308 which, as relevant here, authorizes service by delivery of a summons and complaint within the state to "a person of suitable age and discretion" at defendant's dwelling place, and by mailing the summons to defendant at his "last known residence" ( CPLR 308[2] ; see Wells Fargo Bank, N.A. v. Heaven , 176 A.D.3d 761, 762, 109 N.Y.S.3d 162 [2019] ). As a general rule, "a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" ( Carver Fed. Sav. Bank v. Shaker Gardens, Inc. , 135 A.D.3d 1212, 1213, 23 N.Y.S.3d 685 [2016] [internal quotation marks and citation omitted]; see U.S. Bank, N.A. v. Schumacher , 172 A.D.3d 1137, 1137, 101 N.Y.S.3d 190 [2019] ). Proof of service, in the form of an affidavit of service, established that, at 9:07 p.m. on November 21, 2017, plaintiff's process server left a copy of the summons and complaint at a specified address – defendant's residence – with "Jane Doe" who refused to provide her name and who was described as a female with white-colored skin and covered hair, 50 to 55 years of age and between 5 feet 4 inches tall and 5 feet 8 inches tall and between 131 and 160 pounds (see CPLR 306 ). The affidavit further stated that copies of the summons and complaint were mailed to defendant at that home address on December 1, 2017 (compare Wells Fargo Bank, N.A. v. Heaven , 176 A.D.3d at 763, 109 N.Y.S.3d 162 ). Thus, plaintiff made a prima facie showing that both the service and the mailing requirements of CPLR 308(2) were satisfied (compare id. ; Cedar Run Homeowners' Assn., Inc. v. Adirondack Dev. Group, LLC , 173 A.D.3d at 1330–1331, 102 N.Y.S.3d 740 ).

To rebut that presumption of service, defendant was required to assert a claim with a "detailed and specific contradiction of the allegations in the process server's affidavit sufficient to create a question of fact warranting a hearing" ( Christiana Bank & Trust Co. v. Eichler , 94 A.D.3d 1170, 1171, 942 N.Y.S.2d 241 [2012] [internal quotation marks and citations omitted]; see Fuentes v. Espinal , 153 A.D.3d 500, 501, 60 N.Y.S.3d 81 [2017] ). An "unsupported denial of service is insufficient to dispute the veracity or content of the process server's affidavit" ( Carver Fed. Sav. Bank v. Shaker Gardens, Inc. , 135 A.D.3d at 1213, 23 N.Y.S.3d 685 [internal quotation marks, brackets and citation omitted] ). In his answer, defendant admitted receipt by mail of the summons and complaint on or about December 4, 2017 and, in his motion, stated that, "several weeks before," a copy of those documents had been left on the front steps of his residence. In challenging the service of process as defective, defendant claimed that no person who fits the description in the affidavit of service "lives with" him, and that he did not receive the documents from the person served. He stated that the only two people who lived with him were his 20–year–old daughter and his wife, age 48 and 5 feet 1 inch tall. Defendant did not provide his wife's weight, race or skin color or indicate whether she typically covers her hair, and did not dispute that the address was his dwelling. Further, defendant did not deny that a person matching the description in the process server's affidavit of service was present at his home on the day of service (see Reliable Abstract Co., LLC v. 45 John Lofts, LLC , 152 A.D.3d 429, 429, 58 N.Y.S.3d 365 [2017], lv dismissed 30 N.Y.3d 1056, 69 N.Y.S.3d 585, 92 N.E.3d 808 [2018] ). Although defendant alleged that his wife was "willing to testify that the papers were found on the front steps," he did not assert that she would testify that she did not receive the documents from the process server and, more to the point, he did not submit an affidavit from her attesting that she was not the person served.

We agree with Supreme Court's finding that there were only "minor differences" between the appearance of the unidentified woman served as described in the affidavit of service and defendant's minimal description of his wife. As defendant's denials were unsubstantiated and insufficiently detailed, he failed to rebut the presumption of service or to demonstrate that a traverse hearing was warranted (see PNC Bank, N.A. v. Bannister , 161 A.D.3d 1114, 1115–1116, 77 N.Y.S.3d 452 [2018] ; US Bank N.A. v. Cherubin , 141 A.D.3d 514, 516, 36 N.Y.S.3d 154 [2016] ; Christiana Bank & Trust Co. v. Eichler , 94 A.D.3d at 1171, 942 N.Y.S.2d 241 ; see also JP Morgan Chase Bank v. Dennis , 166 A.D.3d 530, 531, 89 N.Y.S.3d 135 [2018] ; compare U.S. Bank, N.A. v. Schumacher , 172 A.D.3d at 1138, 101 N.Y.S.3d 190 ; Fuentes v. Espinal , 153 A.D.3d at 501, 60 N.Y.S.3d 81 ; TD Banknorth, N.A. v. Olsen , 112 A.D.3d 1169, 1170–1171, 977 N.Y.S.2d 472 [2013] ; NYCTL 1998–1 Trust & Bank of N.Y. v. Rabinowitz , 7 A.D.3d 459, 460, 777 N.Y.S.2d 483 [2004] ). Accordingly, the court properly denied defendant's motion to dismiss on this affirmative defense.

With regard to the denial of defendant's request for a change of venue to Nassau County, where he resides and the relevant events occurred, "[g]enerally, a plaintiff's choice of venue will not be disturbed unless it is improper or a change of venue is warranted in the interest of justice" ( State of New York v. Slezak Petroleum Prods., Inc. , 78 A.D.3d 1288, 1289, 910 N.Y.S.2d 268 [2010] ). Plaintiff, which we have concluded is a proper party to bring this action (see Social Services Law § 390[11] ; Executive Law § 63 ), was entitled to commence this action in Albany County, where its principal offices are located (see CPLR 503[a] ; State of New York v. Mersack , 202 A.D.2d 899, 900, 609 N.Y.S.2d 418 [1994] ). Defendant's argument that there should be a change in venue because he cannot receive a "fair and impartial trial" in Albany County (see CPLR 510[2] ) is premised solely on his...