SUPREME COURT : STATE OF NEW YORK COUNTY OF NASSAU. PRESENT: HON. IRA B. WARSHAWSKY, Justice. TRIALIIAS PART 10. Plaintiff INDEX NO.

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1 ), SHORT FORM ORDER SCAN SUPREME COURT : STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. IRA B. WARSHAWSKY, Justice. TRIALIIAS PART 10 ALLEGIANT PARTNERS INCORPORATED Plaintiff INDEX NO. : /2007 -against - MANOR EAST OF MASSAPEQUA, LLC D/B/A MANOR EAST, 201 JERUSALEM AVENUE MASSAPEQUA, LLC and JOHN DEJOHN Defendants. 1". DECISION AFTER TRAVERSE HEARING -Flaintiffwas granted a judgment by default against defendants John Dejohn ("DeJoru' Manor East of Massapequa, LLC ("Manor East") and 201 Jerusalem Avenue, Massapequa, LLC 201 Jerusalem ) by order dated August 22, Defendaits did not appear in the action because they claim they were not served with the sumons and complaint. Defendants moved by Order to Show Cause dated October 31, 2007 to vacate the default judgment pursuant to CPLR 5015(a) and CPLR 3211(a)(8), upon the grounds that the court never acquired personal jurisdiction over them. This court by order dated Januar 3, 2008, set the matter down for a traverse hearing on the issue of whether defendants were served with process. The hearing was held on Februar 22, The summons and complaint were allegedly served by Jose Oquendo on June , at approximately 12 noon. Mr. Oquendo allegedly delivered copies of the papers directly to John Dejohn at the Manor East catering facility, which is located at 201 Jerusalem Avenue Massapequa, New York. The three affidavits of service uniformly describe the person served

2 , ", " purortedly Mr. DeJohn, as having black hair, brown eyes, being approximately 44 to 54 years of age, being between 5' 11" and 6' 2" tall, and weighing between 240 to 275 pounds. In reality, Mr. DeJohn' s physical appearance is completely inconsistent with the individual described. Mr. DeJohn is 73 years old. He has gray hair, a beard, green eyes, is 5' 6" tall and weights 175 pounds. He appeared and testified at the traverse hearing. There is no dispute that John DeJohn was never served by Mr. Oquendo. At the hearing, plaintiff asserted that Mr. Oquendo actually delivered the papers to Richard Bivona, an associate of Mr. DeJohn', and that Mr. Bivona falsely identified himself as Mr. DeJohn. The traverse hearing was held more than eight months after the summons and complaint were allegedly served on June 29, Prior to the hearing, plaintiffs counsel had Mr. Oquendo serve trial subpoenas on Mr. Richard Bivona on Februar 6, 2008 and, again, on Februar 16, 2008 enabling the process server to take a fresh look at Bivona and the layout of the ; catering facility where process was allegedly effected. At the time of the second service, Bivona said to him You know they re going to make you testify", and Oquendo responded I know. At the hearing, the process server testified to serving a man he was led to believe was DeJohn. He had been shown into a back office area of the catering facility where a man sat at a desk. He asked the man he was shown whether he was DeJohn and that man nodded affirmatively. He stated that he now knows that the man he served was not John DeJohn, but was actually Bivona. After what he believed to be in personam service on DeJohn and on DeJohn on behalf of the LLC, copies of the summons and complaint were mailed to the home and place of business of DeJohn. The description of the person served is obviously not DeJohn. More importantly, it does not fully describe Richard Bivona who appeared and testified at the hearing. Bivona is bald (shaved head), and the picture on his New York State Leamer s Permit issued March , a few months before June 29, 2007, reflects his bald or shaved head. Bivona testified he was not present on the day of the alleged service at the catering facility, and would not have been there until after 3:00 P.M. in the summer, spending his time managing another restaurant, Stil Waters in the mornng. He previously told the plaintiffs lawyer he had been out of state and could

3 prove it by plane tickets. This claim never came to fruition, but he did not deny making that statement to plaintiff s counsel. The process server testified that Bivona (who he says he described in the affidavit of service) must have shaved his head at some time thereafter. He stated he recalled his hair being short and consistent with a person who was balding. He also testified that when he served Bivona on two subsequent dates, in Febru of2008, that the person he served was the same person he had served when he had been led to believe he was serving DeJohn. The information he placed on the affdavit of service was based on his assumption of height and weight because that person never stood up. He also failed to notice any jewelry on that person (did not put it in his notes because jewelry could always be removed). Bivona wears an eamng. In the affidavit of service for June 29, 2007, whereby Oquendo believed to be serving DeJohn but now contends was Bivona, the person s hair is described as black. The balance of the description in the affidavit of June 29, 2007 matches that of Febru and Febru, 2008, except for the hair. The hair is npw described as "black/gray" (there is no "check off' for bald). When Oquendo served the sumons and complaint on June 29, 2007, he presented to the person served, who he now claims is Bivona, but which Bivona denies, a document to be signed by the person served. Exhibit A. Oquendo filled out the top, fillng in name of person served date, day and time, then, next to the pre-printed words "I admit and received legal papers " is a written signature. There is no doubt that the name represented by the signatue is Richard Bivona not John DeJohn. Bivona agrees it is his name, but denies signing it and also that he has never been asked to sign anything by Oquendo. Oquendo states he handed the papers to the man he thought was DeJohn, who proceeded to sign the papers holding them in his hand, not resting them on any hard surface. The cour has been given copies of Richard Bivona s signature on checks (Exhibits 8A 8B), which resembles the signatures on Exhibit A and his driving permit (Exhibit B), and a Consent of Members of2001 Jerusalem Avenue, Massapequa, LLC" form (Exhibit 6), which bears Mr. Bivona s signature and relates that he is signing as "Manager" of the LLC. The word

4 Manager is tyed next to the space that says "Title." Bivona admitted to signng it, but denies he has or had any position with the LLCs. The signatures on Exhibit 6 and Exhibit B more clearly resemble the Bivona signature that appears on Exhibit A, the form agreeing to service ofthe papers. Mr. Oquendo described the hair on the person he served on June 29, 2007 as similar to that of defense counsel. The hair of defense counsel did not resemble the shaven head of Bivona. Would it resemble Bivona s hair if he had not recently shaved his head, is impossible to determine. Exhibit A, the document allegedly given to DeJohn to sign on June , but which bears a signature of a Richard Bivona, is of compellng interest. Assuming for the moment its authenticity, what reason would the process server have to sign the name of a different m the afdavit on June 29, A date on which, he believed he served DeJohn? Bivona, on the other hand would have a reason not to sign DeJohn' s name to avoid committing a forgery. Of course, if the document was not created until after the motion to vacate the default had been fied, that would dramatically undermine the credibility of plaintiffs: witness. There was no challenge made to the veracity of Exhibit A by defendant who was the par that introduced it into evidence. The cour accepts Mr. Oquendo s testimony that he served Richard Bivona rather than John DeJohn on June 29, John DeJohn testified Bivona has authority to accept service on behalf of the LLCs. He denies ever receiving service by mail at either his office or residence. The affidavit of service of mailng is dated July , which is twenty-one days after the alleged in personam service. He testified he first leared of the lawsuit sometime in October. He was shown Exhibit 5 for ID, a cover letter and copy of the judgment. He denied receiving it, or if he did, he gave it to his lawyer. The time of process on June is 11 :59 A.M. Bivona testified that the office hours at the catering facilty are printed on the front door and say "Monday - Friday, 1:00 P.M. - 9:00 M.. " Therefore, Oquendo should not have been able to gain entrance when he claimed he perfected service. The sign on the door is proof of nothing.

5 The question thus becomes, did the court obtain jurisdiction over John DeJohn and/or the LLCs when an admittedly different person was served and that other person led the process server to believe he was the intended target of the process? An LLC may be properly served by personally serving a member of the limited liability company if the management of the LLC is vested in its members, or by serving any manager of the LLC if management of the LLC is vested in one or more of its managers. CPLR 311-a (a)(i and ii). Thus, plaintiff argues that service on Bivona who is designated a "Manager" in Exhibit 6, was service on the LLCs. Furthermore, Bivona signs checks on behalf of Manor East. Exhibits 8A and 8B. These exhibits alone do not prove Bivona is authorized to accept service under CPLR 311-a. However, DeJohn testified that Bivona the LLCs. was authorized to accept service for Plaintiff fuer argues that Bivona was served with a subpoena duces tecum for business: records and, if he had responded, they would have proven Bivona s role in the LLCs. The court has never heard an argument based, not on what evidence a par has, but on what evidence the par says it would have had if the adversar had cooperated. Plaintiffs counsel also points out that Bivona lied to counsel when he told counsel he was out of state when the process was served in J uneof When asked why he did that, he stated "he liked sparing" with counsel. Even if Bivona was not authorized to accept process plaintiff argues that the acts of Bivona resulted in jurisdiction being obtained over the LLC. Plaintiffs counsel relies on Fashion Page. Ltd. v. Zurich Ins. Co., 50 N.Y.2d (1980), whereby the Cour of Appeals stated (in referring to CPLR 311 (1)), "that the purpose of the statute is to give the corporation notice of the commencement of the suit." Id. at 271. A process server may always serve a person specifically named in the statute, but if the corporation has established internal policies for the accepting of service, the process server cannot be expected to be aware of such practices and is lead by the statements and/or directions of corporate employees. In Fashion Page, the process server was directed to a person, the executive secretar to the vice-president, who agreed to accept service (I'll take it.) She gave the process to her boss. It was agreed that she was not a managing agent nor formally authorized to accept service. The court stated that "(i)n such circumstances if service is made in a maner which

6 objectively viewed, is calculated to give the corporation fair notice, the service should be sustained. Id. The defendant argues that service on Mr. Bivona canot qualify as service on Mr. DeJohn, and, furthermore, that the evidence as adduced does not support a finding that, in fact Mr. Bivona was served on June 29, Plaintiff argues that not only must service be sustained against the LLCs, but against Mr. DeJohn as well. He argues that CPLR 5015(a) only authorizes relief from a judgment " upon such terms as may be just." He argues that "in light of the brazen and admitted fraud perpetrated on the process server and plaintiff by Bivona and DeJohn in order to avoid service " such relief should not be granted. Based on the actions of Bivona, plaintiff argues that "the only reasonable inference" that the court can draw is that DeJohn acted in concert with Bivona in helping DeJohn avoid service. Case law is not so flippant in drawing such inferences. There is a difference in a misrepresentation as to authority to accept service and misrepresentation as to identity of the par to be served. CPLR 308(1) requires service of process upon the person to be served (the exceptions are not applicable to our facts). That pbviously did not happen on June 29, The plain language of the statute canot be igno d nor is it to be modified " by judicially engrafted exceptions to CPLR 308(1). Dorfman v. Leidner, 76 N. Y.2d 956 (1990). In Dorfman employees of a doctor s office had informed a process server they could accept service and the doctor would not come to the reception desk. The facts of Dorfman differ from those in our case. Our facts, as accepted by the cour reflect a misrepresentation of identity, not of authority to accept service. This is important because it reflects an intent, an affirmative intent, to evade or refuse service. When that occurs the cour should, and this cour would, find an exception to CPLR 308(1). However, there is no evidence that Mr. DeJohn was a part of this intent to evade service. Mr. Bivona apparently considers himself a "player." He played with the process server in pretending to be DeJohn. He played with the lawyer when he told him he was out of the country at the time process was served and would produce airline tickets. Mr. Bivona is not the most credible person to have testified before this court. However, there is no evidence that DeJohn

7 knew of Bivona s actions at the time they occurred. See Claude v. Adler, 146 A.D.2d (2d Dept. 1989). Jurisdiction may be invoked by service upon an imposter, but plaintiff seeking to take advantage of that theory must show defendant was in some way aware of the misrepresentation. The court finds John DeJohn was not served with the summons and complaint, and that plaintiffhas not proved that DeJohn sought to evade service through the acts of Bivona, or otherwise. The court never obtained personal jurisdiction over DeJohn, and it is, therefore directed that the judgment against John DeJohn is vacated, and the action is dismissed against him without prejudice. The court finds that Richard Bivona accepted service for each of the LLCs on June The service as to John DeJohn is void, but service as to the LLCs was valid. Bivona was authorized to accept service for the LLCs, he has listed himself as a manager of the LLCs, and i that conclusion is strengthened by the fact that he has signed checks on their behalf. The motion! to vacate the judgment against the LLCs, Manor East of Massapequa, LLC, d//a Manor East and 201: Jerusalem Avenue, Massapequa, LLC, is denied and the judgment entered remains in full force and effect. The judgment against the LLCs remains and plaintiff may proceed against them. Dated: April 8, 2008 ENTERED APR 11' 2008 NASSAu \,UUN I 'f CO CLERK' OFf