In a February 14, 2011 decision by Justice Warshawsky, the court denied the plaintiff’s motion for a default judgment on the grounds that service of process was defective. The affidavit of service showed that service of process did not comply with CPLR § 308(2), which provides that service may be effectuated by leaving the summons and complaint with a person of suitable age at the actual place of business or dwelling and then mailing the summons and complaint to the person to be served within 20 days thereafter. The court also granted the defendant’s cross-motion to dismiss the complaint based on res judicata. The court found that the complaint contained identical parties and claims for relief as a previously asserted state court action that was dismissed following, and in light of, the plaintiff’s filing of a bankruptcy petition.
Goldman v Rio, Sup Ct Nassau County, February 14, 2011, Warshawsky, J, Index No. 9284/10