Substituted Service of Process on Co-Defendant Ruled Insufficient

The plaintiff was a home health aide for Gilberto Rivas in Rivas’s apartment, where she claims to have been injured by a defective window. The plaintiff sued the apartment’s owner and Rivas. The plaintiff served the owner of the apartment by substituted service upon Rivas. Neither defendant responded and plaintiff obtained a default judgment. In seeking to vacate the default, the owner claimed that he was never served and that Rivas did not forward the litigation papers to him.

Putting aside the issue of whether the owner listed that apartment as his home address, the Court found it unreasonable and unreliable for the plaintiff to have served the owner by leaving the lawsuit papers with Rivas, who had interests that were adverse to the interest of the apartment’s owner. In this setting, Rivas could not be relied upon to properly forward the papers to the owner. Therefore, the property owner was allowed to file his late answer and to defend the case.

Martinez v. McSweeny, Queens County – J. McDonald