Great American Insurance Company v. Gemstone Property Management, LLC et al.
- Lewis Liman
- 1:23-cv-09100
- U.S. District Court · Southern District of New York
- 4
Counsel of record per CourtListener. Firm names are approximate.
Great American v. Gemstone Property Management: Judge Liman allowed alternative service of a deposition subpoena on David Kaney after repeated failed personal-service attempts.
Great American may serve nonparty David Kaney with the deposition subpoena by attaching it to the door at his 64th Street address and mailing it there by certified mail. The order concerns the method of service and does not decide the alleged fraud dispute.
What happened
In Great American Insurance Company v. Gemstone Property Management, LLC et al., Great American sought to question nonparty David Kaney about boiler-replacement work connected to an alleged fraudulent settlement. Great American said a process server could not personally serve Kaney after six attempts at his 64th Street address.
The court explained that Federal Rule of Civil Procedure 45 ordinarily requires delivering a subpoena to the named person. But courts may allow another method when personal service is impracticable and the method is reasonably likely to provide actual notice. The court found those requirements satisfied because the process server made repeated attempts and someone at the address confirmed that Kaney lived there.
Judge Lewis J. Liman granted Great American’s motion. The court approved attaching the subpoena and related documents to the door at Kaney’s 64th Street address and mailing them there by certified mail, and directed that proof of service be filed under Rule 45(b)(4).
The detailed version
- Great American Insurance Company v. Gemstone Property Management, LLC et al. · No. 1:23-cv-09100
- Lewis Liman
- July 16, 2026
Background
Great American Insurance Company alleged that a settlement reached by Luis Manuel Garcia Salcedo and Subin Associates, LLP after litigation against Gemstone Property Management, LLC and DHNY IV LLC resulted from fraud. According to Great American, the alleged fraud concerned an incident in which Salcedo claimed bodily injuries after construction work related to a boiler at 25 St. Nicolas Terrace in New York. Great American alleged that the incident was staged.
David Kaney, acting for Sustainable Energy Options, LLC, entered into an agreement with Jeremy Markowitz, who acted for Gemstone Realty Partners, LLC, DHNY Apt. IV LLC, and Gemstone Property Management, LLC, concerning boiler-replacement work at 25-35 Nicholas Terrace. Kaney had previously testified that he was Sustainable Energy Options’ sole owner, member, and employee. Great American sought to depose Kaney about the agreement, including the nature and scope of the work and who performed it.
Service Attempts
Great American hired a process server through Bauer Trial Preparation to personally serve Kaney with a deposition subpoena. The process server attempted personal service six times at Kaney’s 64th Street business address. On July 10, 2026, an individual at the address confirmed that Kaney lived there but said he was not home. The process server identified the individual as Kaney’s wife or girlfriend, and she told the process server to return the next day. An attempt during the following afternoon also did not result in service.
Court’s Analysis
Federal Rule of Civil Procedure 45(b)(1) generally requires serving a subpoena by delivering a copy to the named person. The court explained that courts may authorize alternative service when the party seeking it demonstrates a prior diligent attempt to serve the person personally. The affidavit describing the six attempts established that personal service was impracticable.
The alternative method also had to be reasonably calculated to ensure that Kaney actually received the subpoena. Great American proposed “nail and mail” service: attaching the subpoena and accompanying documents to the door at Kaney’s 64th Street address and mailing them to that address by certified mail. The court found the method sufficiently likely to provide actual receipt because Kaney had previously identified the address as his business address and someone there had confirmed that he lived there. The court stated that it did not matter whether the address was his business address, his residence, or both.
Ruling
The court granted Great American’s motion for alternative service. It ordered that the following would constitute proper service on Kaney:
1. Affixing the subpoena and accompanying documents to the door at Kaney’s 64th Street address; and 2. Mailing the subpoena and accompanying documents by certified mail to that address.
The court directed that proof of service be filed under Federal Rule of Civil Procedure 45(b)(4). It also directed the Clerk of Court to close Docket No. 333.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.