Della Mura v. Thomas
- Andrew Krause
- 7:19-cv-08699-AEK
- U.S. District Court · Southern District of New York
- 2
In Della Mura v. Thomas, Magistrate Judge Krause found service on Benjamin Marable unclear and allowed a revised affidavit or extension request.
The order directly affected Della Mura and Defendant Benjamin Marable by requiring more information about service or a request for additional time to attempt service again.
What happened
In Della Mura v. Thomas, Della Mura filed an affidavit stating that Benjamin Marable identified himself through an intercom but refused to open the door, and that the summons and complaint were also mailed to him.
The court said the affidavit did not provide enough detail to determine whether Marable had been properly served. It gave Della Mura until January 4, 2021, to file a revised or supplemental affidavit or to ask for more time to try serving Marable again.
Magistrate Judge Andrew E. Krause issued the order. The order addressed only the adequacy of service and did not decide the underlying claims.
The detailed version
- Della Mura v. Thomas · No. 7:19-cv-08699-AEK
- Andrew Krause
- Dec. 14, 2020
Background
On September 27, 2019, Della Mura filed an affidavit of service concerning service of the summons and complaint on Defendant Benjamin Marable. The affidavit stated that the process server spoke with Marable through an intercom, that Marable identified himself, and that Marable was “being evasive” and “refused to open the door.” It also stated that photographs were taken, but the filing did not explain what the photographs showed, and no photographs were attached. The affidavit did not describe what the process server did to serve Marable in person on September 24, 2019. It did state that a copy of the summons and complaint was sent to Marable by first-class mail. On December 7, 2020, Della Mura filed a proposed Clerk’s Certificate of Default as to Marable.
Legal standard
The court explained that under New York law, papers may be left near a person who refuses service, but the process server must bring the papers within that person’s awareness and make the person aware that the papers are legal process. The court also explained that if the requirements for service are not met, it does not matter whether the person later received the documents in another way.
Ruling
The court held that the September 27, 2019 affidavit was not sufficient on its face to determine whether personal service on Marable was properly completed. The court gave Della Mura until Monday, January 4, 2021, to file a revised affidavit or a supplemental affidavit providing more details about service. Alternatively, by the same date, Della Mura could file a letter motion asking for permission to extend the time to try serving Marable again. The order did not decide the merits of the underlying claims.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.