Phipps SC, LLC v. Carvajal

2025 NY Slip Op 01302

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 2025
• Docket: Index No. 158854/21; Appeal No. 3847; Case No. 2024-00693
• Status: Published

Opinion

Phipps SC, LLC v Carvajal (2025 NY Slip Op 01302)

Phipps SC, LLC v Carvajal

2025 NY Slip Op 01302

Decided on March 06, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 06, 2025
Before: Renwick, P.J., Gesmer, Shulman, Rosado, O'Neill Levy, JJ.

Index No. 158854/21|Appeal No. 3847|Case No. 2024-00693|

[*1]Phipps SC, LLC, Plaintiff-Appellant,

v

Carlos M. Carvajal, Defendant-Respondent.

Gabriel Fischbarg, New York, for appellant.

Carlos M. Carvajal, respondent pro se.

Order, Supreme Court, New York County (Richard Latin, J.), entered on or about September 6, 2023, which, after a traverse hearing, denied plaintiff's motion for a default judgment and granted defendant's cross-motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff failed to show, by a preponderance of the evidence, that service was properly made on defendant pursuant to CPLR 308(2) (see Persaud v Teaneck Nursing Ctr., 290 AD2d 350, 351 [1st Dept 2002]). The court correctly found that service upon an employee of a mail/messenger center in the lobby of defendant's building, whose manager testified that she was not authorized to accept service of process, did not constitute service upon a "person of suitable age and discretion at the actual place of business," as required by CPLR 308(2) (see Matter of Pickman Brokerage [Bevona], 184 AD2d 226, 226 [1st Dept 1992]). Even assuming the building employee later delivered the summons to defendant, it would not constitute proper service (see Fashion Page v Zurich Ins. Co., 50 NY2d 265, 269, 273 [1980]).

We find no basis to disturb the court's credibility determinations, which are entitled to deference on appeal (see Cadlerock Joint Venture II, L.P. v Carrion, 147 AD3d 594 [1st Dept 2017]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 6, 2025