| Finkelstein Newman Ferrara LLP v Manning |
| 2009 NY Slip Op 08470 [67 AD3d 538] |
| November 17, 2009 |
| Appellate Division, First Department |
| Finkelstein Newman Ferrara LLP, Respondent, v LeoManning, Appellant. |
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Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered February 11,2008, which denied defendant's motion to dismiss the complaint, unanimously modified, on thelaw, that portion of the order denying dismissal for lack of personal jurisdiction vacated, thematter remanded for a traverse hearing, and otherwise affirmed, without costs.
Defendant's sworn, nonconclusory denial of service sufficiently controverted the veracity orcontent of the affidavit of service to require a traverse hearing (NYCTL 1998-1 Trust & Bank of N.Y. vRabinowitz, 7 AD3d 459, 460 [2004]). The affidavit of service established that theprocess server attempted to serve defendant at his place of residence on three separate occasions,namely, on February 2, 2007 at 4:30 p.m., February 5 at 9:05 a.m., and February 6 at 7:30 p.m.,but after reasonable efforts was "unable to find . . . defendant" or a person ofsuitable age and discretion willing to accept service on his behalf. On his third attempt, hepurportedly effected service by affixing a copy of the summons and complaint to the door ofdefendant's last known residence. But this assertion was inconsistent with his affidavit submittedin opposition to the motion to dismiss, where he averred that on his third attempt, defendantcame to the door and refused to open it when the process server identified himself and thepurpose of his visit. The process server concluded, in this later affidavit, that defendant wasintentionally avoiding service, and that further attempts would be futile. Accordingly, he affixeda copy of the summons and complaint to the door pursuant to CPLR 308 (4).
Plaintiff also claims to have served defendant at work, pursuant to CPLR 308 (2), bydelivery of the summons and complaint to a person of suitable age and discretion at defendant'sactual place of business.
Defendant, in turn, swore that he was home on both February 5 and 6, 2007, and that neitherthe telephone intercom nor the doorbell rang on either occasion. He further stated that the personwho purported to accept service on his behalf at his place of business was not authorized to doso, and was in fact a "vendor/distribution" employee assigned to a car services entity in thebuilding where his office was located, but unrelated to defendant's business. Defendant's sworndenials raised an issue of fact requiring a traverse hearing (NYCTL, 7 AD3d at 460). Inlight of the sharp factual dispute as to the validity of service upon defendant, the motion courterred in [*2]failing to resolve this threshold issue of personalservice with a traverse hearing. As defendant filed his answer only after the IAS courterroneously denied his motion to dismiss for lack of personal jurisdiction, defendant did notwaive that defense by asserting unrelated counterclaims in his answer.
The motion court properly denied that portion of the motion to dismiss asserting failure tostate a cause of action. Defendant argues that the complaint fails to adequately allege breach ofcontract. However, as the motion court found, the complaint, when read together with theaffidavit of attorney Robert Finkelstein in opposition to the motion, sufficiently stated a cause ofaction for breach of an oral agreement between the parties. It is well settled that "affidavits maybe used freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello vOrofino Realty Co., 40 NY2d 633, 635 [1976]).
Defendant's claim that the second cause of action (for account stated) fails to state a cause ofaction is likewise without merit. In opposition to defendant's motion, plaintiff submitted itemizedinvoices rendered during the period from July 1, 2001 through April 1, 2003, specifying in detailthe work performed for defendant, including the personnel who performed the work, the date thework was performed, the hours billed for the work, and the charges therefor.
The motion court properly rejected defendant's argument that recovery was barred due toplaintiff's failure to comply with 22 NYCRR 1215.1. This statewide rule on letters ofengagement does not apply where an attorney's representation began prior to its effective date(see Ziskin Law Firm, LLP v Bi-CountyElec. Corp., 43 AD3d 1158 [2007]).
Contrary to defendant's assertions, plaintiff did not wait eight years before seeking paymentfrom defendant. Plaintiff sent monthly, itemized invoices to defendant during the entire course ofthe representation, from 2001 through July 2003. Thereafter, plaintiff sent demand lettersbeginning in March 2007, culminating in initiation of this action. The only delay attributable toplaintiff was a period of less than four years, from the time of the last invoice (July 2003)through its first demand letter (March 2007). In any event, defendant offers only conclusoryallegations as to how he was prejudiced by any alleged delay. Sanctions pursuant to 22 NYCRR130-1.1 are not warranted under the circumstances. Concur—Friedman, J.P., McGuire,Moskowitz, Acosta and DeGrasse, JJ.