Castillo v. Kelly, Index No. 30452/12 (Sup.Ct. Suffolk Cty. 2014)

Abrams Gorelick was successful in getting a default judgment against its clients vacated and the Complaint against them dismissed on the ground that service upon a summer home via “nail & mail” service is improper service of process.

Plaintiff was allegedly injured while performing construction work on a summer home in Long Island. Plaintiff’s counsel filed suit pursuant to New York’s Labor Law and a process server attempted personal service at the defendants’ summer home multiple times during the winter, without ever attempting service at their actual residence. After failing to serve the defendants personally at the summer home, plaintiff’s process server taped a copy of the Complaint to the front door of the summer home and mailed another copy to the summer home’s address. Plaintiff subsequently obtained a default judgment against the defendants.

On the eve of the inquest, defendants received, via mail, a copy of the motion for default judgment and Abrams Gorelick was retained to defend them. Arguing that there was a valid defense to the claims (i.e., that the Labor Law does not apply to the owners of a single family residence, and that service upon the summer home via “nail & mail” service was improper because it was not the defendants’ usual place of abode within the State), Abrams Gorelick successfully filed and argued an Order to Show Cause seeking an injunction and stay from enforcement of the default judgment. After a traverse hearing, the court vacated the default judgment and dismissed the Complaint for lack of personal jurisdiction as against the owner.

Defendants were represented by James M. Brown of Abrams Gorelick.