Orellana et al v. Palacios Drywall Incorporated et al
Filing
53
ORDER: Accordingly: 1. By April 16, 2024, Plaintiffs may file an affidavit explaining why the process server's attempts at service fulfill the due diligence requirement of N.Y. C.P.L.R. § 308(4). 2. Alternatively, by April 16, 2024, P laintiffs shall serve this order, a copy of the order to show cause, ECF No. 46, and their supporting papers, ECF Nos. 43-45, upon Defendants Jose Palacios and Yolany Hernandez via personal service. a. By April 19, 2024, Plaintiffs shall file on th e docket (1) proofs of service, and (2) the supporting papers that were served upon the Defaulting Defendants (as attachments to the proofs of service). b. By April 30, 2024, the Defaulting Defendants shall respond to Plaintiffs' motion. c. By May 7, 2024, Plaintiffs shall file their reply, if any. 3. The default judgment hearing scheduled for April 2, 2024, is ADJOURNED to May 14, 2024 at 10:30 a.m. The parties are directed to dial 888-398-2342 or 215-861-0674 and enter access code 5598827. SO ORDERED. ( Responses due by 4/30/2024, Replies due by 5/7/2024. Telephone Conference set for 5/14/2024 at 10:30 AM before Judge Analisa Torres.) (Signed by Judge Analisa Torres on 3/27/2024) (va)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSE ORELLANA and JHONNY
HERAS MOLINA,
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 3/27/2024
Plaintiffs,
-againstPALACIOS DRYWALL INCORPORATED,
JOSE PALACIOS, GUILLERMO MENDOZA,
and YOLANY HERNANDEZ a/k/a Yolany
Sorto De Palacios,
23 Civ. 1962 (AT)
ORDER
Defendants.
ANALISA TORRES, District Judge:
On November 7, 2023, the Court issued an order directing Plaintiffs to serve Defendants
Palacios Drywall Incorporated, Jose Palacios, and Yolany Hernandez (the “Defaulting Defendants”)
with a copy of the order to show cause and their supporting papers. ECF No. 46. The proof of
service submitted by Plaintiffs indicated that all three Defaulting Defendants were served only by
mail. ECF No. 47. By order dated January 9, 2024, the Court deemed the mail-only service deficient
and noted that it would not “will not conduct a default judgment hearing unless Defaulting
Defendants have received proper notice of the hearing.” ECF No. 48 at 1. The Court directed
Plaintiffs to serve Jose Palacios and Yolany Hernandez (the “Individual Defendants”) by personal
service, and to serve Palacios Drywall Incorporated both first-class mail and through the New York
Secretary of State. Id.
On March 4, 2024, Plaintiffs filed new affidavits of service. ECF No. 51. The affidavits for
the Individual Defendants indicated that on February 26, 2024, at 11:31 a.m., the process server
affixed copies of the documents to the door at 220 Rockne Road, Yonkers, NY, “the same being the
defendant[]’s place of Abode,” and mailed copies of the documents to the same address. ECF Nos.
51, 51-1. The affidavits also stated that the process server attempted personal service at the same
address on February 16 at 6:45 p.m. and February 24 at 7:20 a.m., but there was no answer.
New York law permits service by this “nail and mail” method “only as a last resort: if inperson service cannot be made with due diligence.” Joe Hand Promotions, Inc. v. Necessary Studios,
Inc., No. 21 Civ. 5551, 2022 WL 18858972, at *3 (E.D.N.Y. Dec. 5, 2022) (citation omitted); see
N.Y. C.P.L.R. § 308(4). Although what constitutes “due diligence” is determined on a case-by-case
basis, “cases have required approximately three attempts at service, optimally on non-consecutive
days.’” Weifang Xinli Plastic Prods. v. JBM Trading Inc., No. 11 Civ. 2710, 2014 WL 4244258, at
*3 (E.D.N.Y. Aug. 26, 2014), aff’d, 583 F. App’x 24 (2d Cir. 2014). However, “[s]ome courts will
find that three attempts is not enough, if the process server does not make inquiries about the
defendant’s residence or employment.” Id.; see, e.g., Interboro Ins. Co. v. Tahir, 129 A.D.3d 1687,
1688–89 (N.Y. App. Div. 2015) (finding lack of due diligence where there was “no indication that the
process server made genuine inquiries to ascertain [defendant’s] actual residence or place of
employment”)
Plaintiffs’ affidavits of service are not sufficient for the Court to conclude that the due
diligence requirement was satisfied. Although the process server made three attempts at service on
non-consecutive days, including two during non-business hours, the affidavits do not explain whether
the process server made any inquiries into whether the Individual Defendants in fact resided at the
Rockne Road address. Nor do they state whether the process server also attempted to serve the
Individual Defendants at their place(s) of employment. The Court, therefore, finds that due diligence
was not established here.
Accordingly:
1. By April 16, 2024, Plaintiffs may file an affidavit explaining why the process server’s
attempts at service fulfill the due diligence requirement of N.Y. C.P.L.R. § 308(4).
2. Alternatively, by April 16, 2024, Plaintiffs shall serve this order, a copy of the order to
show cause, ECF No. 46, and their supporting papers, ECF Nos. 43–45, upon Defendants
Jose Palacios and Yolany Hernandez via personal service.
a. By April 19, 2024, Plaintiffs shall file on the docket (1) proofs of service, and (2)
the supporting papers that were served upon the Defaulting Defendants (as
attachments to the proofs of service).
b. By April 30, 2024, the Defaulting Defendants shall respond to Plaintiffs’ motion.
c. By May 7, 2024, Plaintiffs shall file their reply, if any.
3. The default judgment hearing scheduled for April 2, 2024, is ADJOURNED to May 14,
2024 at 10:30 a.m. The parties are directed to dial 888-398-2342 or 215-861-0674 and
enter access code 5598827.
SO ORDERED.
Dated: March 27, 2024
New York, New York
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?