Friedman v Friedman 2024 NY Slip Op 32167(U) June 26, 2024 Supreme Court, Kings County Docket Number: Index No. 504754/2024 Judge: Francois A. Rivera 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: KINGS COUNTY CLERK 06/26/2024 03:36 PM INDEX NO. 504754/2024 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/26/2024
At an IAS Term, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 26th day of June 2024
HONORABLE FRANCOIS A. RIVERA -------------------------------------------------------------------X JOEL FRIEDMAN DECISION & ORDER
Plaintiff, Index No.: 504754/2024
- against - Ms. 1 & 3
ABRAHAM FRIEDMAN
Defendant. -------------------------------------------------------------------X
Recitation in accordance with CPLR 2219 (a) of the papers considered on order to show cause filed on March 7, 2024, under motion sequence number one, by Joel Friedman (hereinafter plaintiff) for an order pursuant to CPLR 2308 (b) directing nonparty Gary Snitow to comply with the subpoena issued on February 20, 2024 and to produce the settlement agreement between Joel and Abraham Friedman that he holds as an escrow agent. This motion is opposed.
-Order to show cause -Memorandum of law in support -Affirmation in support Exhibits A-F -Affirmation in opposition Exhibit 1 -Affirmation in opposition and in support of cross-motion1 Exhibits 1-14 -Affidavit in opposition and in support of cross motion Exhibits 1-4 - Memorandum of law in opposition and in support of cross-motion
1 The cross-motion filed by defendant was also opposition to the order to show cause filed by the plaintiff.
1 of 6 [* 1] FILED: KINGS COUNTY CLERK 06/26/2024 03:36 PM INDEX NO. 504754/2024 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/26/2024
-Affirmation in support2 Exhibit 1
Recitation in accordance with CPLR 2219 (a) of the papers considered on notice of cross-motion filed on April 13, 2024, under motion sequence number three, by Abraham Friedman (hereinafter defendant) for an order pursuant to CPLR 2304 quashing the February 20, 2024 subpoena to nonparty Gary Snitow and pursuant to CPLR 3103 issuing a protective order as to the subpoena. This motion was unopposed.3
-Notice of cross-motion -Affirmation in support and in opposition to plaintiff’s motion Exhibits 1 -Affirmation in support and in opposition to plaintiff’s motion -Affirmation in support and in opposition to plaintiff’s motion Exhibits 1-14 -Affidavit in support and in opposition to plaintiff’s motion Exhibits 1-4 -Memorandum of law in support and in opposition to plaintiff’s motion
BACKGROUND
The original order to show cause under motion sequence number one required
“personal service” of a copy of the order and papers upon which it is based, be made
upon defendant by and through his counsel and on nonparty Gary Snitow on or before
April 1, 2024. Plaintiff did not file proof of service of the order to show cause.
On May 6, 2024, the Court issued an order directing plaintiff to file an affirmation
of service on the order to show cause on nonparty Gary Snitow with the NYSCEF system
by Wednesday, June 12, 2024 and cautioned that failure to do so would result in the
motion being denied. The defendant’s cross-motion under motion sequence number three
2 This is designated as “Affirmation of Velvel (Devin) Freedman Confirming Mr. Snitow Was Timely Served.” The Court notes that Velvel (Devin) Freedman is plaintiff’s counsel. 3 Although plaintiff’s attorney stated he “opposed” the cross-motion, he stated in open court on April 16, 2024 that he did not need additional time to file opposition and that he was ready to proceed with oral argument. He further indicated that the order to show cause adequately addressed the cross-motion.
2 of 6 [* 2] FILED: KINGS COUNTY CLERK 06/26/2024 03:36 PM INDEX NO. 504754/2024 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/26/2024
was stayed pending the determination on the order to show cause under motion sequence
number one.
On May 7, 2024, plaintiff filed a document designated as “Affirmation of Velvel
(Devin) Freedman Confirming Mr. Snitow Was Timely Served” (hereinafter affirmation
of plaintiff’s counsel) along with exhibit 1. The affirmation of plaintiff’s counsel alleges
the following salient facts. On March 7, 2024, plaintiff’s counsel emailed nonparty
attorney Gary Snitow advising him that the “Court has ordered us to personally serve
you” with the order to show cause and its supporting papers asking if Gary Snitow would
“prefer accepting service of all papers via email.” The order to show cause and its
supporting papers were attached to that email. Plaintiff’s counsel then spoke with Gary
Snitow on the phone and was asked by Gary Snitow not to send a process server, that he
would prefer to accept service via email, and that he should be sent an acknowledgement
of service to execute. On March 12, 2024, Gary Snitow returned the executed
acknowledgement of service to plaintiff’s counsel confirming he was served with the
order to show cause marked NYSCEF No. 25 and all supporting papers on March 7,
2023.
Plaintiff’s counsel attached nonparty Gary Snitow’s acknowledgment of service as
exhibit 1 (hereinafter the Snitow acknowledgment). Exhibit 1 is designated as
“Acknowledgment of Service” and states the following: “I am a Non-Party in this case. I
hereby acknowledge that I was served with the Order to Show Cause marked NYSCEF
No. 25 and all supporting papers on March 7, 2024.” Below this statement is a signature
line that includes a typed signature of Gary S. Snitow under the typed name of Gary S.
3 of 6 [* 3] FILED: KINGS COUNTY CLERK 06/26/2024 03:36 PM INDEX NO. 504754/2024 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/26/2024
Snitow, Esq. In the middle left side of the page, in a miniscule font, is the following
string of characters: 4894-0181-7005, v. 1.
LAW AND APPLICATION
As a threshold matter, the Court must determine whether the Court has personal
jurisdiction over the order to show cause.
“The method of service provided for in an order to show cause is jurisdictional in
nature and must be strictly complied with” (Hennessey v DiCarlo, 21 AD3d 505 [2d Dept
2005], quoting Matter of Marcoccia v Garfinkle, 307 AD2d 1010 [2d Dept 2003]). Here,
the signed order to show cause required “personal service” on nonparty Gary Snitow on
or before April 1, 2024.
Personal service upon a natural person is governed by CPLR 308. “Service of
process must be made in strict compliance with statutory methods for effecting personal
service upon a natural person pursuant to CPLR 308” (Washington Mut. Bank v Murphy,
127 AD3d 1167, 1174 [2d Dept 2015], quoting Estate of Waterman v Jones, 46 AD3d 63,
65 [2d Dept 2007], quoting Macchia v. Russo, 67 NY2d 592, 594 [1986]). “CPLR 308
sets forth the different ways in which service of process upon an individual can be
effected in order for the court to obtain jurisdiction over that person” (Washington Mut.
Bank v Murphy, 127 AD3d 1167, 1174 [2d Dept 2015]). Here, by Plaintiff’s counsel’s
own affirmation, after consulting with nonparty Gary Snitow, plaintiff relied upon service
via email, which is not one of the prescribed methods of service under CPLR 308 and is
Free access — add to your briefcase to read the full text and ask questions with AI
Friedman v Friedman 2024 NY Slip Op 32167(U) June 26, 2024 Supreme Court, Kings County Docket Number: Index No. 504754/2024 Judge: Francois A. Rivera 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: KINGS COUNTY CLERK 06/26/2024 03:36 PM INDEX NO. 504754/2024 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/26/2024
At an IAS Term, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 26th day of June 2024
HONORABLE FRANCOIS A. RIVERA -------------------------------------------------------------------X JOEL FRIEDMAN DECISION & ORDER
Plaintiff, Index No.: 504754/2024
- against - Ms. 1 & 3
ABRAHAM FRIEDMAN
Defendant. -------------------------------------------------------------------X
Recitation in accordance with CPLR 2219 (a) of the papers considered on order to show cause filed on March 7, 2024, under motion sequence number one, by Joel Friedman (hereinafter plaintiff) for an order pursuant to CPLR 2308 (b) directing nonparty Gary Snitow to comply with the subpoena issued on February 20, 2024 and to produce the settlement agreement between Joel and Abraham Friedman that he holds as an escrow agent. This motion is opposed.
-Order to show cause -Memorandum of law in support -Affirmation in support Exhibits A-F -Affirmation in opposition Exhibit 1 -Affirmation in opposition and in support of cross-motion1 Exhibits 1-14 -Affidavit in opposition and in support of cross motion Exhibits 1-4 - Memorandum of law in opposition and in support of cross-motion
1 The cross-motion filed by defendant was also opposition to the order to show cause filed by the plaintiff.
1 of 6 [* 1] FILED: KINGS COUNTY CLERK 06/26/2024 03:36 PM INDEX NO. 504754/2024 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/26/2024
-Affirmation in support2 Exhibit 1
Recitation in accordance with CPLR 2219 (a) of the papers considered on notice of cross-motion filed on April 13, 2024, under motion sequence number three, by Abraham Friedman (hereinafter defendant) for an order pursuant to CPLR 2304 quashing the February 20, 2024 subpoena to nonparty Gary Snitow and pursuant to CPLR 3103 issuing a protective order as to the subpoena. This motion was unopposed.3
-Notice of cross-motion -Affirmation in support and in opposition to plaintiff’s motion Exhibits 1 -Affirmation in support and in opposition to plaintiff’s motion -Affirmation in support and in opposition to plaintiff’s motion Exhibits 1-14 -Affidavit in support and in opposition to plaintiff’s motion Exhibits 1-4 -Memorandum of law in support and in opposition to plaintiff’s motion
BACKGROUND
The original order to show cause under motion sequence number one required
“personal service” of a copy of the order and papers upon which it is based, be made
upon defendant by and through his counsel and on nonparty Gary Snitow on or before
April 1, 2024. Plaintiff did not file proof of service of the order to show cause.
On May 6, 2024, the Court issued an order directing plaintiff to file an affirmation
of service on the order to show cause on nonparty Gary Snitow with the NYSCEF system
by Wednesday, June 12, 2024 and cautioned that failure to do so would result in the
motion being denied. The defendant’s cross-motion under motion sequence number three
2 This is designated as “Affirmation of Velvel (Devin) Freedman Confirming Mr. Snitow Was Timely Served.” The Court notes that Velvel (Devin) Freedman is plaintiff’s counsel. 3 Although plaintiff’s attorney stated he “opposed” the cross-motion, he stated in open court on April 16, 2024 that he did not need additional time to file opposition and that he was ready to proceed with oral argument. He further indicated that the order to show cause adequately addressed the cross-motion.
2 of 6 [* 2] FILED: KINGS COUNTY CLERK 06/26/2024 03:36 PM INDEX NO. 504754/2024 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/26/2024
was stayed pending the determination on the order to show cause under motion sequence
number one.
On May 7, 2024, plaintiff filed a document designated as “Affirmation of Velvel
(Devin) Freedman Confirming Mr. Snitow Was Timely Served” (hereinafter affirmation
of plaintiff’s counsel) along with exhibit 1. The affirmation of plaintiff’s counsel alleges
the following salient facts. On March 7, 2024, plaintiff’s counsel emailed nonparty
attorney Gary Snitow advising him that the “Court has ordered us to personally serve
you” with the order to show cause and its supporting papers asking if Gary Snitow would
“prefer accepting service of all papers via email.” The order to show cause and its
supporting papers were attached to that email. Plaintiff’s counsel then spoke with Gary
Snitow on the phone and was asked by Gary Snitow not to send a process server, that he
would prefer to accept service via email, and that he should be sent an acknowledgement
of service to execute. On March 12, 2024, Gary Snitow returned the executed
acknowledgement of service to plaintiff’s counsel confirming he was served with the
order to show cause marked NYSCEF No. 25 and all supporting papers on March 7,
2023.
Plaintiff’s counsel attached nonparty Gary Snitow’s acknowledgment of service as
exhibit 1 (hereinafter the Snitow acknowledgment). Exhibit 1 is designated as
“Acknowledgment of Service” and states the following: “I am a Non-Party in this case. I
hereby acknowledge that I was served with the Order to Show Cause marked NYSCEF
No. 25 and all supporting papers on March 7, 2024.” Below this statement is a signature
line that includes a typed signature of Gary S. Snitow under the typed name of Gary S.
3 of 6 [* 3] FILED: KINGS COUNTY CLERK 06/26/2024 03:36 PM INDEX NO. 504754/2024 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/26/2024
Snitow, Esq. In the middle left side of the page, in a miniscule font, is the following
string of characters: 4894-0181-7005, v. 1.
LAW AND APPLICATION
As a threshold matter, the Court must determine whether the Court has personal
jurisdiction over the order to show cause.
“The method of service provided for in an order to show cause is jurisdictional in
nature and must be strictly complied with” (Hennessey v DiCarlo, 21 AD3d 505 [2d Dept
2005], quoting Matter of Marcoccia v Garfinkle, 307 AD2d 1010 [2d Dept 2003]). Here,
the signed order to show cause required “personal service” on nonparty Gary Snitow on
or before April 1, 2024.
Personal service upon a natural person is governed by CPLR 308. “Service of
process must be made in strict compliance with statutory methods for effecting personal
service upon a natural person pursuant to CPLR 308” (Washington Mut. Bank v Murphy,
127 AD3d 1167, 1174 [2d Dept 2015], quoting Estate of Waterman v Jones, 46 AD3d 63,
65 [2d Dept 2007], quoting Macchia v. Russo, 67 NY2d 592, 594 [1986]). “CPLR 308
sets forth the different ways in which service of process upon an individual can be
effected in order for the court to obtain jurisdiction over that person” (Washington Mut.
Bank v Murphy, 127 AD3d 1167, 1174 [2d Dept 2015]). Here, by Plaintiff’s counsel’s
own affirmation, after consulting with nonparty Gary Snitow, plaintiff relied upon service
via email, which is not one of the prescribed methods of service under CPLR 308 and is
contrary to the explicit direction of the Court in the signed order to show cause.
4 of 6 [* 4] FILED: KINGS COUNTY CLERK 06/26/2024 03:36 PM INDEX NO. 504754/2024 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/26/2024
The Snitow acknowledgment is neither an affirmation nor an affidavit. It is not
subscribed nor affirmed as true under penalties of perjury. Also, the line for signature is
typed without anything to support its authenticity or that it was signed by nonparty Gary
Snitow. Moreover, nonparty Gary Snitow has neither appeared in the instant action nor
on the return date of the underlying motion. Under these circumstances, the Snitow
acknowledgement included by counsel does not relieve plaintiff of following the Court’s
strict directive to serve nonparty Gary Snitow by personal service.
Therefore, due to failure to comply with service requirements in the signed order
to show cause, the Court did not obtain jurisdiction over the motion or over nonparty
Gary Snitow. As such, the order to show cause under motion sequence number one is
denied.
Inasmuch as the Court did not obtain jurisdiction over the plaintiff’s order to show
cause, the defendant’s cross-motion under motion sequence number three seeking certain
relief in opposition to plaintiff’s motion, is hereby rendered academic.
CONCLUSION
The motion of plaintiff Joel Friedman for an order pursuant to CPLR 2308 (b)
directing nonparty Gary Snitow to comply with the subpoena issued on February 20,
2024 and to produce the settlement agreement between Joel and Abraham Friedman that
he holds as an escrow agent is denied.
5 of 6 [* 5] FILED: KINGS COUNTY CLERK 06/26/2024 03:36 PM INDEX NO. 504754/2024 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/26/2024
The motion of defendant Abraham Friedman for an order pursuant to CPLR 2304
quashing the February 20, 2024 subpoena to nonparty Gary Snitow and pursuant to
CPLR 3103 issuing a protective order as to the subpoena is denied as academic.
The foregoing constitutes the decision and order of this Court.
ENTER: _____________________________________
J.S.C.
6 of 6 [* 6]