Phipps SC, LLC v Carvajal
2025 NY Slip Op 01302
Decided on March 06, 2025
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: March 06, 2025
Before: Renwick, P.J., Gesmer, Shulman, Rosado, O'Neill Levy, JJ.

Index No. 158854/21|Appeal No. 3847|Case No. 2024-00693|

[*1]Phipps SC, LLC, Plaintiff-Appellant,

v

Carlos M. Carvajal, Defendant-Respondent.




Gabriel Fischbarg, New York, for appellant.

Carlos M. Carvajal, respondent pro se.



Order, Supreme Court, New York County (Richard Latin, J.), entered on or about September 6, 2023, which, after a traverse hearing, denied plaintiff's motion for a default judgment and granted defendant's cross-motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff failed to show, by a preponderance of the evidence, that service was properly made on defendant pursuant to CPLR 308(2) (see Persaud v Teaneck Nursing Ctr., 290 AD2d 350, 351 [1st Dept 2002]). The court correctly found that service upon an employee of a mail/messenger center in the lobby of defendant's building, whose manager testified that she was not authorized to accept service of process, did not constitute service upon a "person of suitable age and discretion at the actual place of business," as required by CPLR 308(2) (see Matter of Pickman Brokerage [Bevona], 184 AD2d 226, 226 [1st Dept 1992]). Even assuming the building employee later delivered the summons to defendant, it would not constitute proper service (see Fashion Page v Zurich Ins. Co., 50 NY2d 265, 269, 273 [1980]).

We find no basis to disturb the court's credibility determinations, which are entitled to deference on appeal (see Cadlerock Joint Venture II, L.P. v Carrion, 147 AD3d 594 [1st Dept 2017]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 6, 2025