| Born To Build, LLC v Saleh |
| 2016 NY Slip Op 03462 [139 AD3d 654] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| Born To Build, LLC, Respondent, v IbrahimSaleh, Also Known as Abrahim Saleh and Others, Defendant, and Qing Ling Mei,Appellant. |
Yu-Xi Liu, Brooklyn, NY, for appellant.
Kazlow & Kazlow, New York, NY (Stuart L. Sanders of counsel), forrespondent.
In an action to set aside a fraudulent conveyance pursuant to the Debtor and CreditorLaw, the defendant Qing Ling Mei appeals, as limited by her brief, from so much of anorder of the Supreme Court, Queens County (Elliot, J.), entered January 21, 2014, asgranted that branch of her motion which was to dismiss the complaint insofar as assertedagainst her pursuant to CPLR 3211 (a) (8) only to the extent of dismissing the complaintunless the summons and complaint is served upon her within 120 days of the entry of theorder or upon her attorney within 60 days pursuant to the terms set forth in an order ofthe same court dated April 1, 2013.
Ordered that the order entered January 21, 2014, is affirmed insofar as appealedfrom, with costs.
After commencing this action, the plaintiff made two unsuccessful attempts to servethe summons and complaint on the defendant Qing Ling Mei (hereinafter the defendant):first, at a house she owned in New York, and second, at an address in Massachusettsrevealed by a public records search. After each attempt, the defendant moved to dismissthe complaint on the ground, among others, that she had not been properly served. Theplaintiff then moved ex parte for an order permitting expedient service pursuant to CPLR308 (5). In an order dated April 1, 2013, the Supreme Court granted that motion to theextent of permitting the plaintiff to serve the defendant's attorney via one of the methodsspecified for the service of other papers in CPLR 2103 (b) (1), (3) or (4). The plaintiffthen attempted service at the attorney's office by delivering process to an employee of theattorney. However, the process server's affidavit failed to accurately identify the papersserved. Thereafter, the defendant moved to dismiss the complaint insofar as assertedagainst her pursuant to, inter alia, CPLR 3211 (a) (8). The Supreme Court granted thatbranch of the motion made on the ground that the process server's affidavit was defectiveto the extent of dismissing the complaint insofar as asserted against the defendant unlessthe summons and complaint were served upon her within 120 days of the entry of theorder or upon her attorney within 60 days pursuant to the terms set forth in the orderdated April 1, 2013. The defendant appeals, arguing that the Supreme Court erred inpermitting service upon her attorney.
Under CPLR 308 (5), a court is vested with the discretion to direct an alternativemethod for service of process when it has determined that the methods set forth in CPLR308 (1), (2) and (4) are "impracticable" (CPLR 308 [5]; see Oglesby v Barragan, 135AD3d 1215, 1216 [2016]; Matter [*2]of Kaila B., 64 AD3d647, 648 [2009]; Corbo v Stephens, 272 AD2d 502, 503 [2000]; Tetro vTizov, 184 AD2d 633, 635 [1992]). Service must be made within 120 days after thecommencement of the action, but the court may extend this period for good cause shownor in the interest of justice (see CPLR 306-b; Matter of Baumann & Sons Buses, Inc. v Ossining Union FreeSch. Dist., 121 AD3d 1110, 1113 [2014]; Dhuler v ELRAC, Inc., 118 AD3d 937, 939 [2014]).
As the defendant argues, "[a]n attorney is not automatically considered the agent ofhis [or her] client for the purposes of the service of process" and, absent proof that adefendant has designated his or her attorney as an agent for the acceptance of process, anattorney lacks the authority to accept service on the defendant's behalf (Broman vStern, 172 AD2d 475, 476 [1991]; see Howard B. Spivak Architect, P.C. v Zilberman, 59 AD3d343, 344 [2009]; Matter of Fagelson v McGowan, 301 AD2d 652 [2003];Charles H. Greenthal & Co. v 301 E. 21st St. Tenants' Assn., 91 AD2d 934[1983]; but see Matter ofDefreestville Area Neighborhoods Assn., Inc. v Tazbir, 23 AD3d 70, 73[2005]). Here, however, the plaintiff demonstrated that it had been unable to serve thedefendant at the addresses available to it. The defendant stated that she lived and workedin China, but did not disclose either her business or residence address in that country,thereby preventing the plaintiff from attempting international service pursuant to theHague convention (see Hague Convention on the Service Abroad of Judicial andExtrajudicial Documents in Civil or Commercial Matters, 20 UST 361, TIAS No. 6638[1969]). Furthermore, the extensive motion practice in this case demonstrates that serviceof process on her attorney will be adequate to apprise her of the action. Accordingly, theSupreme Court providently exercised its discretion both in permitting the plaintiff toserve process on the defendant's attorney as a form of expedient service pursuant toCPLR 308 (5) in its order dated April 1, 2013, and in renewing that permission in theorder appealed from (see e.g. Matter of Kaila B., 64 AD3d at 648; LTDTrading Enters. v Vignatelli, 176 AD2d 571 [1991]; Osserman v Osserman,92 AD2d 932, 934 [1983]; see also Tetro v Tizov, 184 AD2d at 635). Likewise,under the circumstances of this case, the court's determination to grant the plaintiffadditional time to serve the defendant was a provident exercise of discretion.
To the extent that the defendant raises issues regarding those branches of her motionwhich were for an order pursuant to CPLR 3211 (a) (1) and (7) dismissing the complaintinsofar as asserted against her, those branches of her motion were not decided by theSupreme Court and, thus, remain pending and undecided (see Katz v Katz, 68AD2d 536, 542-543 [1979]).
The defendant's remaining contentions are without merit. Mastro, J.P., Dickerson,Hall and Sgroi, JJ., concur.