Legal Document: Berrian Inc. v. Frederick J. Neroni, Tatiana Neroni

On May 10, 2023 a MEMORANDUM OF LAW (Motion #2) - Frederick J. Neroni's Memorandum of Law in support of his motion to dismiss was filed involving a dispute between Berrian Inc., and Frederick J. Neroni, Tatiana Neroni, for Real Property - Other (easement dispute) in the District Court of Delaware County.

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FILED: DELAWARE COUNTY CLERK 11/06/2023 05:37 PM INDEX NO. EF2023-322
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/06/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DELAWARE
________________________________________
BERRIAN, INC.,
Plaintiff, Index No. EF 2023-322
-against-

FREDERICK J. NERONI, MEMORANDUM OF LAW
TATIANA NERONI, OF DEFENDANT PRO SE
FREDERICK J. NERONI
Defendants.

___________________________________________

TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................................................... 1
LEGAL ARGUMENT ............................................................................................................................. 2
I. Lack of due diligence on behalf of Plaintiff ...................................................................................... 2
II. Service out of state does not confer personal jurisdiction in the type of action Plaintiff has brought .. 4
III. Plaintiff’s purported e-mail service did not comply with the court order of NYSCEF Doc. 25
(without concession as to its validity, the order will be duly appealed) ..................................................... 4
IV. CPLR 2103(b) does not allow service of multiple parties with the same set of documents ............ 5
V. Plaintiff did not show and this court did not find impracticability of service based on CPLR 308(5),
rendering the court without power to order service by e-mail, and rendering such service by e-mail legally
insufficient .............................................................................................................................................. 6
VI. Plaintiff has failed to serve Defendant Frederick J. Neroni in compliance with CPLR 308(4),
NYSCEF Doc. 5 ...................................................................................................................................... 7
VII. Defendant Frederick J. Neroni’s residing at the address listed on Plaintiff’s Summons during
pertinent period of time is established by a local court, is supported by incontrovertible testimony of
witnesses and by authentic photographic evidence ................................................................................... 8
VIII. Motion to dismiss based on CPLR 306-b........................................................................................ 9
CONCLUSION ..................................................................................................................................... 10
WORD COUNT CERTIFICATION ....................................................................................................... 11

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LEGAL ARGUMENT

I. Lack of due diligence on behalf of Plaintiff

On the day Plaintiff has filed its lawsuit, NYSCEF Doc. 1, Plaintiff was on public notice of

Defendant Frederick J. Neroni’s address for 8 years through public records in Delhi NY that

Plaintiff knew well how to get (see Affidavit of Frederick J. Neroni, see also Frederick J.

Neroni’s Exhibit 12).

Defendant Frederick J. Neroni was throughout this litigation and remains now an ideal

subject to be served as he has lived in the same house, at the address listed on Plaintiff’s

Summons, NYSCEF Doc. 1, p. 1, for over 8 years, continuously and without interruption,

openly, with animals outside on the screened porch of the residence during all daytime hours.

Moreover, Defendant Frederick J. Neroni has had throughout the time allotted by law for service

mobility problems preventing him from moving around (see Affidavit of Frederick J. Neroni,

Exhibits 2-3), so he is staying in the house practically 24/7, and he has an incontinent old dog

and two new puppies, and the dogs need to be walked often on a public road directly adjoining

Defendant Frederick J. Neroni’s unfenced property where even Plaintiff’s process server

inadvertently admitted that he had an unobstructed access to the door of Defendant Frederick J.

Neroni’s residence, NYSCEF Doc. 5, see also photographic evidence in Tatiana Neroni’s

Exhibits 6, 7.

Under these circumstances, nothing prevented the Plaintiff from serving Defendant Frederick J.

Neroni with the Summons and Complaint in full compliance with CPLR 308(1) or (2) within the

very first week after the filing the lawsuit, after making appropriate inquiries with the neighbors,

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Defendant Frederick J. Neroni’s neighbors, see Affidavit of Paul Johnson, and not his ex-wife’s,

as Plaintiff’s process server has done, see NYSCEF Doc. 10.

Even without inquiries with the neighbors, all that the process server had to do is to press a

button on one of the numerous doorbells attached by defendants outside of their residence at 240

Harvest Moon Drive, Georgetown SC, 29440 before this lawsuit was filed, and exactly for the

purpose of getting called outside if they are needed for any reason, see Affidavit of Paul Johnson,

see also photographic evidence in Tatiana Neroni’s Exhibit 7 for May 1, 2023.

Defendant Frederick J. Neroni’s house has had, throughout this litigation, unmistakable signs of

being occupied – (1) cats and dogs on the outside screened porch from sunrise to beyond sunset;

(2) lights on a large house both outside and inside at sunset, and defendants taking care of their

evening routine cleaning the porch and putting cats and dogs inside the house into the night

crates, and, again, walking the dogs on the public road, see Affidavit of Tatiana Neroni, Tatiana

Neroni’s Exhibit 7, see also Affidavits of Alexander Neroni, Paul Johnson, Frederick J. Neroni.

Plaintiff has failed the simple task of conducting service of process following the required

statutory procedure, CPLR 308(1), (2), (4) or (5), on Defendant Frederick J. Neroni, an ideal,

sitting-duck subject, the court was without power to order expedient service under CPLR 308(5),

and the action brought by a presumptively sophisticated plaintiff, a purported commercial

corporation, represented by a presumptively competent counsel, an entire law firm, should be

dismissed.

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II. Service out of state does not confer personal jurisdiction in the type of action Plaintiff
has brought

Plaintiff’s purported e-mail service upon Defendant Frederick J. Neroni of October 18, 2023 (see

Affidavit of Frederick J. Neroni, Exhibits 4-7) is legally insufficient to confer personal

jurisdiction of this court over Defendant Frederick J. Neroni, as, in addition to other legal

insufficiency problems, it has reached Defendant Frederick J. Neroni out of state, see Frederick

J. Neroni’s Exhibit 8.

Since the judgment the Plaintiff is seeking qualifies under CPLR 314(2), see NYSCEF Doc. 1 p.

7, service by any means out of state does not confer personal jurisdiction of this court over

Defendant Frederick J. Neroni.

For this reason alone, the complaint should be dismissed.

III. Plaintiff’s purported e-mail service did not comply with the court order of NYSCEF
Doc. 25 (without concession as to its validity, the order will be duly appealed)

Defendant Frederick J. Neroni agrees with Defendant Tatiana Neroni’s statement in her

Memorandum of Law that the court order, NSYCEF Doc. 25 allowed Plaintiff to serve

defendants by e-mail only within a certain strictly designated period of time, 30 days after the

entry of the order.

The order was filed, and thus entered, on October 19, 2023, NYSCEF Doc. 25.

Not only Defendant Frederick J. Neroni’s evidence shows that Plaintiff has served him one day

earlier than when he was supposed to, see Frederick J. Neroni’s Exhibit 2, but Plaintiff’s

Affidavit of Service, NYSCEF Doc. 26 concedes that Plaintiff has conducted service of

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attachments, Exhibits 4-7, upon Defendant Frederick J. Neroni on October 18, 2023, a day

before the order was filed and entered.

On October 18, 2023 Plaintiff did not have permission of the court to serve Defendant Frederick

J. Neroni by e-mail, as the court order clearly allowed Plaintiff to do that within 30 days of the

entry of the order, NYSCEF Doc. 25, and not earlier.

Nor did the court allow Plaintiff to serve Defendant Frederick J. Neroni with a Summons and

Complaint by regular mail.

Such a purported service is, thus, legally insufficient, and the complaint should be dismissed for

failure to serve Defendant Frederick J. Neroni and to acquire any type of jurisdiction of this

court, CPLR 3211(a)(8), CPLR 3211(a)(9).

IV. CPLR 2103(b) does not allow service of multiple parties with the same set of
documents

Plaintiff has cut corners in how it has served Defendant Frederick J. Neroni, by sending a single

e-mail to both Frederick J. Neroni and Tatiana Neroni.

CPLR 2103(b) does not allow such service, allowing a single set of documents to be served only

upon a counsel representing multiple parties in the same action, and both of defendants herein

are unrepresented.

Without concession to validity of NYSCEF Doc. 25, Plaintiff was supposed to send two separate

e-mails, one for service upon each defendant, and failure to do so resulted in legally insufficient

service.

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V. Plaintiff did not show and this court did not find impracticability of service based on
CPLR 308(5), rendering the court without power to order service by e-mail, and
rendering such service by e-mail legally insufficient

A court is without power to order expedient service without a show that service of the Summons

and Complaint based on CPLR 308(1), CPLR 308(2), and CPLR 308(4) is impracticable, Dime

Savings Bank of New York, FSB v Mancini, 169 A.D.2d 964 (3rd Dept., 1991), while

“impracticability” is strictly defined by New York courts as only allowed when service pursuant

to CPLR 308(1), CPLR 308(2), and CPLR 308(4) is “futile”, Dobkin v. Chapman, 21 NY 2d 490

(NY: Court of Appeals, 1968).

Moreover, recent decisions by New York courts showed that even defendants escape across the

ocean into another country during a COVID pandemic did not qualify as impracticability for

purposes of CPLR 308(5), when such a country had diplomatic relations with the United States

and was a signatory of having diplomatic relations with the United States and a signatory of the

the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and

Commercial Matters, see Joseph II. v Luisa JJ., 201 A.D.3d 43, 160 N.Y.S.3d 119, 2021 NY Slip

Op 06586 (3rd Dept., 2021), while impracticability was found when the defendant escaped into a

hostile nation that was not a signatory of the Hague Convention, Safadjou v Mohammadi, 104

A.D.3d 1423, 964 N.Y.S.2d 801 (4th Dept., 2013).

No such impracticability was ever shown by Plaintiff regarding Defendant Frederick J. Neroni

who did not escape service, but instead retired to reside in South Carolina close to his oldest son

and the son’s family, 8 years ago, while leaving behind with Delhi, NY taxing authorities, as a

public record, his current residential address listed on Plaintiff’s Summons, NYSCEF Doc. 1, p.

1, see Affidavit of Frederick J. Neroni, Exhibit 12.

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Openly residing, for over 8 years, continuously and without interruption, in a house on a public

road in a sister state, on an unfenced property with a clear access of process server to all doors of

the residence, see Tatiana Neroni’s Exhibit 7, p. 63 photo # 66, hardly qualifies as

impracticability.

Since no impracticability was shown or could be found pursuant to CPLR 308(5) when Plaintiff

had all necessary information and means to serve Defendant at her known residential address in a

house located on an unfenced property on a public road in a sister state, in the manner provided

for by CPLR 308(1), (2), and (4), but voluntarily aborted attempts to do so at the time such

attempts were still legally insufficient, cf. NYSCEF Docs. 4, 5, PacAmOr Bearings, Inc. v Foley,

92 A.D. 2d 959 (3rd Dept., 1983) (where much more efforts of the process server than Plaintiff’s

process server attempted was still found as “woefully perfunctory” and legally insufficient).

Thus, the court was without power to order expedient service by e-mail, such service did not

acquire any type of jurisdiction of this court, and the complaint should be dismissed based on

CPLR 3211(a)(8), (a)(9).

VI. Plaintiff has failed to serve Defendant Frederick J. Neroni in compliance with CPLR
308(4), NYSCEF Doc. 5

NYSCEF Doc. 5 completely lacks any mention of satisfying the mailing or the filing

requirements, and such service was, thus, legally insufficient on its face.

In addition, the nailing requirement was also legally insufficient, as not only the process server

has failed to describe (much less provide photographic and GPS evidence of his visit, as has

become a good business practice in the process server industry, see Affidavit of Tatiana Neroni,

Tatiana Neroni’s Exhibit 11) the property, the door and the manner of affixing the documents to

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that door, as required by PacAmOr Bearings, Inc. v Foley, 92 A.D. 2d 959 (3rd Dept., 1983), but

the process server has allegedly posted the documents to “the door” of a residence he had

claimed to be “not occupied”, NYSCEF Doc. 5, while CPLR 308(4) requires to affix the

Summons to the door of a “actual place of business, dwelling place or usual place of abode”.

To crown it all, the 3rd Department has stated in PacAmOr Bearings, Inc. v Foley, 92 A.D. 2d 959

(3rd Dept., 1983) what kind of efforts of a process server are “woefully perfunctory” and legally

insufficient.

Since Plaintiff’s process server did much less than that, his efforts in NYSCEF Doc. 5 are

“woefully perfunctory” and legally insufficient a fortiori, and the process server did not satisfy

even the condition precedent to switch to the “nail, mail and file” service.

VII. Defendant Frederick J. Neroni’s residing at the address listed on Plaintiff’s Summons
during pertinent period of time is established by a local court, is supported by
incontrovertible testimony of witnesses and by authentic photographic evidence

The Decree of Probate of the Delaware County Surrogate’s Court dated June 21, 2023, see The

Decree granting Probate, in the Probate Proceedings, Will of Marco P. Colasuonno, File No.

2023-107/A (NY: Del. Co. Sur. Ct., June 21, 2023) based on investigation of the Hon. John L.

Hubbard on June 21, 2023 has conclusively established presence of Defendant Frederick J.

Neroni in Georgetown on June 5, 2023, the date of his affidavit to the Delaware County

Surrogate’s Court, and his residence at 240 Harvest Moon Drive listed on the affidavit.

Moreover, residence of Defendant Frederick J. Neroni during pertinent period of time at the

address listed on Plaintiff’s Summons is confirmed by multiple witnesses, see Affidavits of

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Frederick J. Neroni, Tatiana Neroni, Vera Neroni, Alexander Neroni, Paul Johnson), and by

photographic evidence, see Tatiana Neroni’s Exhibit 7.

Plaintiff’s process server’s conclusory claim that the house is “not occupied” is inadmissible

hearsay, as the process server did not submit any evidence supporting that claim, and is belied by

the photographic evidence that both defendants were present at that house during each one of the

process server’s purported visits, and that it was not credible that the process server even came to

the property, but did not notice cats and barking dogs on the outside porch of the house, or a

parrot screaming through the walls of the house, see Affidavit of Tatiana Neroni, Tatiana Neroni

Exhibits 7, 12.

VIII. Motion to dismiss based on CPLR 306-b

Since, as shown above, Plaintiff has not validly served Defendant Frederick J. Neroni with the

Summons and Complaint in compliance with CPLR 308(1), (2), (4) or (5), and the time to serve

has expired, the complaint should be dismissed based on CPLR 306-b.

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CONCLUSION

In view of the above, the complaint should be dismissed pursuant to CPLR 3211(a)(8), CPLR

3211(a)(9) for failure to serve the Summons and Complaint in a manner satisfying CPLR 308(1),

(2), (4) and (5).

Dated: November 6, 2023

_________________
Frederick J. Neroni
Defendant Pro Se

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WORD COUNT CERTIFICATION

I, Frederick J. Neroni, Defendant Pro Se herein, do hereby certify that the attached document

contains 2,145 words as counted by my word processing software (Word), exclusive of the

caption and the signature block, in compliance with the word limits set forth in Uniform Rule

202.8-b(a), (b).

Dated: November 6, 2023

_________________
Frederick J. Neroni
Defendant Pro Se

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Document Filed Date

November 06, 2023

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May 10, 2023

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