Defendant's motion to dismiss the complaint for lack of personal jurisdiction is denied. Plaintiff landlord's properly executed affidavit of service constituted prima facie evidence of proper service of the summons and complaint upon defendant-lease guarantor. The affidavit of service attests to attempted personal service upon defendant on three separate dates and times at a nightclub business address that defendant designated for notice purposes in connection with his execution of the lease guaranty. On the fourth service attempt, the process server resorted to affix and mail service, pursuant to CPLR 308[4].
Defendant argues that because of the Covid lockdown and the nightclub's temporary closure, the nightclub address could no longer be deemed his actual place of business, and that service at that location did not afford him with reasonable notice of the action against him for purposes of acquiring personal jurisdiction. However, because defendant designated the nightclub address as his business address for notice purposes under the guaranty, he may not now reasonably claim he was not properly served. In addition, defendant had a contractual duty under the guaranty to keep the landlord apprised of a current address for receipt of notices in connection with the guaranty, and he never changed the address.
Accordingly, defendant's mere denial of receipt of process fails to rebut the presumption of proper service created by the affidavit of service.
Amcojor Realty Corp. v. Butter Mgt. LLC, NY Slip Op 05476 (1st Dep't November 7, 2024)
