Dewald v Pirkyl 2025 NY Slip Op 31893(U) May 29, 2025 Supreme Court, New York County Docket Number: Index No. 101082/2023 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 05/30/2025 02:46 P~ INDEX NO. 101082/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/29/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO PART 33M Justice ---------------------- - - - - - - - - - - - - X INDEX NO. 101082/2023 JEROME W DEWALD, MOTION DATE 01/24/2024 Plaintiff, MOTION SEQ. NO. 003 - V -
JEFFREY PIRKYL, S&P ASSOCIATES OF NEW YORK, ROSENBERG & ESTIS, P.C, MICHAEL A. PENSABENE, DEBORAH REIGEL, COREY ROSEN, DANIEL DECISION + ORDER ON KIRSHBLUM, CONSTANTINE CANNON, LLP, ANDREW MOTION BERKMAN, JOHN OR JANE DOE,
Defendant. --------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 21, 22, 23, 24, 25, 26,27,28,29, 30, 31, 32, 33, 34,45,46,47,48,49 were read on this motion to/for DISMISS
Upon the foregoing documents, and after a final submission date of April 11. 2025,
Defendants S&P Associates of New York LLC ("S&P"), Rosenberg & Estis, P.C. ("Rosenberg &
Estis"), Jeffrey Pirkl ("Mr. Pirkl"), and Constantine Cannon, LLP' s ("Constantine") (collectively
"Defendants") motion to dismiss the self-represented Plaintiff Jerome W. Dewald's ("Plaintiff')
Amended Complaint pursuant to CPLR 3211 (a)( 1), (a)(7), and (a)(8), and for sanctions pursuant
to 12 NYCRR 130-1.1 is granted in part and denied in part.
I. Background
Plaintiff leased an apartment from S&P and is currently litigating two other cases against
it. The first litigation is captioned Dewald v. S & P Associates of New York LLC, Index No.
654981/2019, which was borne out of S&P's denial of a lease renewal to Plaintiff. The second
action is captioned S & P Associates of New York LLC v Dewald, Index No. 159779/2023 which
arises from Plaintiff allegedly renting out his apartment on Airbnb. Plaintiff also has another case
101082/2023 DEWALD, JEROME W. vs. PIRKL, JEFFREY Page 1 of 5 Motion No. 003
1 of 5 [* 1] [FILED: NEW YORK COUNTY CLERK 05/30/2025 02 :46 PM] INDEX NO. 101082/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/29/2025
captioned Dewald v. Rosenberg & Estis, P. C, Index No. 655512/2023 where Plaintiff alleged that
Rosenberg & Estis and Deborah Riegel defamed him by telling the New York Post that Plaintiff
has not paid rent and lives with a dog in violation of S&P's no-pet policy. 1
In this action, Plaintiff's original complaint only named Mr. Pirkl. However, he filed an
Amended Complaint on November 16, 2023 naming all other defendants and alleging that a
temporary restraining order was issued against him by Judge Suzanne Adams in a secretive manner
"behind closed doors in the judge's chambers" which he claims gives rise to claims for negligent
and intentional infliction of emotional distress. He also alleges the temporary restraining order
constituted tortious interference with business relationships since he could no longer rent his
apartment on Airbnb. He alleges defamation and fraud based on allegedly false statements made
to Judge Adams to obtain the temporary restraining order. He also alleges abuse of process and
malicious prosecution based on the temporary restraining order. Finally, he alleges obstruction of
justice, civil conspiracy and racketeering based on a vague allegation that everyone, including
unnamed New York State Court employees, has conspired against him to issue a temporary
restraining order. The Moving Defendants seek dismissal under various grounds, and Plaintiff
opposes.
II. Discussion
A. CPLR 3211(a)(8)
Constantine, Rosenberg & Estis, and S&P are all dismissed pursuant to CPLR 321 l(a)(8).
On a motion to dismiss pursuant to CPLR 321 l(a)(8), the plaintiff has the burden of showing
sufficient evidence through affidavits and other documents that jurisdiction over the defendants is
warranted (Bangladesh Bank v Rizal Commercial Banking Corp., 226 AD3d 60, 73-74 [1st Dept
1 This action was dismissed based on Plaintiffs failure to properly effectuate service. 101082/2023 DEWALD, JEROME W. vs. PIRKL, JEFFREY Page 2 of 5 Motion No. 003
2 of 5 [* 2] [FILED: NEW YORK COUNTY CLERK 05/30/2025 02 :46 PM] INDEX NO. 101082/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/29/2025
2024]). Here, Plaintiff has not met that burden as to Constantine, Rosenberg & Estis, and S&P.
The affidavits of service (NYSCEF Docs. 24-26) reflect that Plaintiff simply mailed the Amended
Complaint to Constantine, Rosenberg & Estis, and S&P - however this is insufficient to obtain
personal jurisdiction. Plaintiff has failed to produce affidavits of service in opposition to the motion
as to any other defendant.
In his opposition papers, Plaintiff reiterates, in fatal fashion, that the Amended Summons
and Complaint was only mailed. However, while CPLR 312-a allows for service by first class
mail, it also requires two copies of a statement of service by mail and acknowledgment of receipt,
with a return envelope, postage prepaid, addressed to the sender to be included. Nowhere in the
affidavit of service does it reflect that a return envelope with postage prepaid addressed to Plaintiff
was included, nor is there any evidence of an acknowledgment ofreceipt by Constantine, S&P, or
Rosenberg & Estis (see also Jiggetts v MTA Metro-N. R.R., 121 AD3d 414, 414-415 [1st Dept
2014]).
Nor does the affidavit of service comply with CPLR 31 l(a)(l), which requires service
directly on an authorized corporate representative. The affidavit of service merely states a copy of
the verified complaint was mailed to Rosenberg & Estis' business address, which is insufficient
(see also Goldmark v Keystone & Grading Corp., 226 AD2d 143, 144 [1st Dept 1996]). He also
failed to follow the requirements of CPLR 311-a in serving S&P, and CPLR 310-a in serving
Constantine, where both provisions require service on a specified representative. Therefore, the
Amended Complaint is dismissed against Defendants for lack of personal jurisdiction.
Further, as argued by the Defendants, Plaintiff also failed to effectuate service of the
Amended Complaint on the individually named Defendants Pirkl, Michael Pensabene, Deborah
Riegel, Daniel Kirshblum, Corey Rosen, and Andrew Berkman, and the time to do so has long
101082/2023 DEWALD, JEROME W. vs. PIRKL, JEFFREY Page 3 of 5 Motion No. 003
[* 3] 3 of 5 [FILED: NEW YORK COUNTY CLERK 05/30/2025 02 :46 PM] INDEX NO. lOlOB 2 / 2 0 23 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/29/2025
since expired. Nor has Plaintiff moved for an extension of time to serve them (see CPLR 306-b).
Plaintiff only claims to have effectuated service of the original Complaint on Mr. Pirkl, but the
record states otherwise, and Plaintiff fails to show that Mr. Pirkl was served with the Amended
Complaint. Plaintiff claims Mr. Pirkl was served pursuant to CPLR 308(2). This provision is
known as "Deliver-and-Mail" service and requires both in-person delivery and mailing to be
complete - if the summons is only mailed, service under CPLR 308(2) has not been effectuated.
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Dewald v Pirkyl 2025 NY Slip Op 31893(U) May 29, 2025 Supreme Court, New York County Docket Number: Index No. 101082/2023 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 05/30/2025 02:46 P~ INDEX NO. 101082/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/29/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO PART 33M Justice ---------------------- - - - - - - - - - - - - X INDEX NO. 101082/2023 JEROME W DEWALD, MOTION DATE 01/24/2024 Plaintiff, MOTION SEQ. NO. 003 - V -
JEFFREY PIRKYL, S&P ASSOCIATES OF NEW YORK, ROSENBERG & ESTIS, P.C, MICHAEL A. PENSABENE, DEBORAH REIGEL, COREY ROSEN, DANIEL DECISION + ORDER ON KIRSHBLUM, CONSTANTINE CANNON, LLP, ANDREW MOTION BERKMAN, JOHN OR JANE DOE,
Defendant. --------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 21, 22, 23, 24, 25, 26,27,28,29, 30, 31, 32, 33, 34,45,46,47,48,49 were read on this motion to/for DISMISS
Upon the foregoing documents, and after a final submission date of April 11. 2025,
Defendants S&P Associates of New York LLC ("S&P"), Rosenberg & Estis, P.C. ("Rosenberg &
Estis"), Jeffrey Pirkl ("Mr. Pirkl"), and Constantine Cannon, LLP' s ("Constantine") (collectively
"Defendants") motion to dismiss the self-represented Plaintiff Jerome W. Dewald's ("Plaintiff')
Amended Complaint pursuant to CPLR 3211 (a)( 1), (a)(7), and (a)(8), and for sanctions pursuant
to 12 NYCRR 130-1.1 is granted in part and denied in part.
I. Background
Plaintiff leased an apartment from S&P and is currently litigating two other cases against
it. The first litigation is captioned Dewald v. S & P Associates of New York LLC, Index No.
654981/2019, which was borne out of S&P's denial of a lease renewal to Plaintiff. The second
action is captioned S & P Associates of New York LLC v Dewald, Index No. 159779/2023 which
arises from Plaintiff allegedly renting out his apartment on Airbnb. Plaintiff also has another case
101082/2023 DEWALD, JEROME W. vs. PIRKL, JEFFREY Page 1 of 5 Motion No. 003
1 of 5 [* 1] [FILED: NEW YORK COUNTY CLERK 05/30/2025 02 :46 PM] INDEX NO. 101082/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/29/2025
captioned Dewald v. Rosenberg & Estis, P. C, Index No. 655512/2023 where Plaintiff alleged that
Rosenberg & Estis and Deborah Riegel defamed him by telling the New York Post that Plaintiff
has not paid rent and lives with a dog in violation of S&P's no-pet policy. 1
In this action, Plaintiff's original complaint only named Mr. Pirkl. However, he filed an
Amended Complaint on November 16, 2023 naming all other defendants and alleging that a
temporary restraining order was issued against him by Judge Suzanne Adams in a secretive manner
"behind closed doors in the judge's chambers" which he claims gives rise to claims for negligent
and intentional infliction of emotional distress. He also alleges the temporary restraining order
constituted tortious interference with business relationships since he could no longer rent his
apartment on Airbnb. He alleges defamation and fraud based on allegedly false statements made
to Judge Adams to obtain the temporary restraining order. He also alleges abuse of process and
malicious prosecution based on the temporary restraining order. Finally, he alleges obstruction of
justice, civil conspiracy and racketeering based on a vague allegation that everyone, including
unnamed New York State Court employees, has conspired against him to issue a temporary
restraining order. The Moving Defendants seek dismissal under various grounds, and Plaintiff
opposes.
II. Discussion
A. CPLR 3211(a)(8)
Constantine, Rosenberg & Estis, and S&P are all dismissed pursuant to CPLR 321 l(a)(8).
On a motion to dismiss pursuant to CPLR 321 l(a)(8), the plaintiff has the burden of showing
sufficient evidence through affidavits and other documents that jurisdiction over the defendants is
warranted (Bangladesh Bank v Rizal Commercial Banking Corp., 226 AD3d 60, 73-74 [1st Dept
1 This action was dismissed based on Plaintiffs failure to properly effectuate service. 101082/2023 DEWALD, JEROME W. vs. PIRKL, JEFFREY Page 2 of 5 Motion No. 003
2 of 5 [* 2] [FILED: NEW YORK COUNTY CLERK 05/30/2025 02 :46 PM] INDEX NO. 101082/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/29/2025
2024]). Here, Plaintiff has not met that burden as to Constantine, Rosenberg & Estis, and S&P.
The affidavits of service (NYSCEF Docs. 24-26) reflect that Plaintiff simply mailed the Amended
Complaint to Constantine, Rosenberg & Estis, and S&P - however this is insufficient to obtain
personal jurisdiction. Plaintiff has failed to produce affidavits of service in opposition to the motion
as to any other defendant.
In his opposition papers, Plaintiff reiterates, in fatal fashion, that the Amended Summons
and Complaint was only mailed. However, while CPLR 312-a allows for service by first class
mail, it also requires two copies of a statement of service by mail and acknowledgment of receipt,
with a return envelope, postage prepaid, addressed to the sender to be included. Nowhere in the
affidavit of service does it reflect that a return envelope with postage prepaid addressed to Plaintiff
was included, nor is there any evidence of an acknowledgment ofreceipt by Constantine, S&P, or
Rosenberg & Estis (see also Jiggetts v MTA Metro-N. R.R., 121 AD3d 414, 414-415 [1st Dept
2014]).
Nor does the affidavit of service comply with CPLR 31 l(a)(l), which requires service
directly on an authorized corporate representative. The affidavit of service merely states a copy of
the verified complaint was mailed to Rosenberg & Estis' business address, which is insufficient
(see also Goldmark v Keystone & Grading Corp., 226 AD2d 143, 144 [1st Dept 1996]). He also
failed to follow the requirements of CPLR 311-a in serving S&P, and CPLR 310-a in serving
Constantine, where both provisions require service on a specified representative. Therefore, the
Amended Complaint is dismissed against Defendants for lack of personal jurisdiction.
Further, as argued by the Defendants, Plaintiff also failed to effectuate service of the
Amended Complaint on the individually named Defendants Pirkl, Michael Pensabene, Deborah
Riegel, Daniel Kirshblum, Corey Rosen, and Andrew Berkman, and the time to do so has long
101082/2023 DEWALD, JEROME W. vs. PIRKL, JEFFREY Page 3 of 5 Motion No. 003
[* 3] 3 of 5 [FILED: NEW YORK COUNTY CLERK 05/30/2025 02 :46 PM] INDEX NO. lOlOB 2 / 2 0 23 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/29/2025
since expired. Nor has Plaintiff moved for an extension of time to serve them (see CPLR 306-b).
Plaintiff only claims to have effectuated service of the original Complaint on Mr. Pirkl, but the
record states otherwise, and Plaintiff fails to show that Mr. Pirkl was served with the Amended
Complaint. Plaintiff claims Mr. Pirkl was served pursuant to CPLR 308(2). This provision is
known as "Deliver-and-Mail" service and requires both in-person delivery and mailing to be
complete - if the summons is only mailed, service under CPLR 308(2) has not been effectuated.
The mandates of CPLR 308(2) are to be strictly construed, and the failure to properly follow CPLR
308(2)'s procedure constitutes a jurisdictional defect (AMK Capital Corp. v Plotch, 230 AD3d 26,
31 [1st Dept 2024] citing Williams v MTA Bus Co., 224 AD3d 467, 468 [1st Dept 2024]). Based
on the failure to effectuate service in a timely manner on the individual named defendants, these
defendants are dismissed (see Zeetogroup, LLC v Baker Hostetler, LLP, 224 AD3d 622, 622-23
[1st Dept 2024]; Diaz v Nasir, 228 AD3d 572, 572-73 [1st Dept 2024]).
Although Plaintiff asks the Court for leave to correct any mistake with service, the request
is buried in his motion papers and not included in a formal notice of motion or cross-motion, and
therefore the Court will not entertain it as it violates CPLR 2214 and 2215 (see also Onofre v 2 43
Riverside Drive Corp., 232 AD3d 443, 443-44 [1st Dept 2024] citing Abizadeh v Abizadeh, 159
AD3d 856,857 [2d Dept 2018]; see also Arriaga v Laub Co., 233 AD2d 244,245 [1st Dept 1996]).
Because the Complaint is dismissed pursuant to CPLR 3211 (a)(8), the motion to dismiss
pursuant to CPLR 321 l(a)(l) and (a)(7) is academic. In an exercise of its discretion, the Court
denies Defendants request for sanctions, as Plaintiff is self-represented, and this litigation was not
protracted.
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Accordingly, it is hereby,
ORDERED that Defendants' motion to dismiss pursuant to CPLR 321 l(a)(8) is granted,
and Plaintiffs Amended Complaint is dismissed against all defendants for failure to properly
effectuate service; and it is further
ORDERED that Defendants' motion to dismiss Plaintiffs Amended Complaint pursuant
to CPLR 321 l(a)(l) and (a)(7) is denied as academic; and it is further
ORDERED that Defendants' motion for sanctions is denied; and it is further
ORDERED that within ten days of entry, counsel for Defendants shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
5/29/2025 DATE
CHECK ONE: x CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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