Orellana v. Palacios Drywall Incorporated
- Analisa Torres
- 1:23-cv-01962
- U.S. District Court · Southern District of New York
- 2
In Orellana v. Palacios Drywall Incorporated, Judge Torres found service deficient, required further action, and adjourned the default judgment hearing.
The order affected plaintiffs Jose Orellana and Jhonny Heras Molina, defendants Jose Palacios and Yolany Hernandez, and the scheduled default judgment proceedings involving the defaulting defendants.
What happened
In Orellana v. Palacios Drywall Incorporated, Jose Orellana and Jhonny Heras Molina sought a default judgment against Palacios Drywall Incorporated, Jose Palacios, and Yolany Hernandez. The court had previously found that serving the defendants only by mail was not enough.
The plaintiffs later submitted affidavits saying that a process server had tried to serve Palacios and Hernandez three times, then posted and mailed the documents to an address in Yonkers. The court said the affidavits did not show whether the process server had checked that the defendants lived there or had tried to serve them at work.
Judge Analisa Torres found that the plaintiffs had not shown the required effort to complete service. She allowed them either to file an explanation by April 16, 2024, or to serve Palacios and Hernandez personally. She also set deadlines for filing proof and responses and adjourned the default judgment hearing from April 2 to May 14, 2024.
The detailed version
- Orellana v. Palacios Drywall Incorporated · No. 1:23-cv-01962
- Analisa Torres
- Mar. 27, 2024
Background
The court had previously directed the plaintiffs to serve Palacios Drywall Incorporated, Jose Palacios, and Yolany Hernandez with an order to show cause and supporting papers concerning the plaintiffs’ request for a default judgment. The plaintiffs initially reported that all three defendants had been served only by mail. On January 9, 2024, the court ruled that mail-only service was deficient and stated that it would not hold a default judgment hearing without proper notice.
The court then directed the plaintiffs to serve Palacios and Hernandez personally. For Palacios Drywall Incorporated, the court required service by first-class mail and through the New York Secretary of State.
Service of Palacios and Hernandez
The plaintiffs later filed affidavits stating that a process server attempted personal service on Palacios and Hernandez at 220 Rockne Road, Yonkers, New York, on February 16 at 6:45 p.m. and February 24 at 7:20 a.m. The affidavits stated that, on February 26 at 11:31 a.m., the process server affixed the documents to the door and mailed copies to the same address.
Under New York Civil Practice Law and Rules § 308(4), commonly called “nail and mail” service, this method may be used only as a last resort after personal service cannot be completed with due diligence. The court explained that courts often look for about three attempts, preferably on nonconsecutive days, but may require additional evidence that the process server investigated the defendant’s residence or employment.
The court found that the affidavits did not establish due diligence. Although they described three attempts on nonconsecutive days, including two outside ordinary business hours, they did not say whether the process server investigated whether Palacios and Hernandez actually lived at the Rockne Road address. They also did not say whether the process server tried to serve them at their places of employment.
Order
The court did not hold the scheduled default judgment hearing at that time. It allowed the plaintiffs, by April 16, 2024, either to file an affidavit explaining why the service attempts satisfied the due-diligence requirement or to serve Palacios and Hernandez personally with the order, the order to show cause, and the supporting papers.
If the plaintiffs chose personal service, they were required to file proofs of service and the served supporting papers by April 19. The defaulting defendants were given until April 30 to respond, and the plaintiffs could file a reply by May 7. Judge Analisa Torres adjourned the default judgment hearing to May 14, 2024, at 10:30 a.m.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.