One of the things I like about the law, and litigation in particular, is the "just when you think you've seen it all . . . " aspect of it. In a recent decision, Sevinc v. Fulton House, the Appellate Division resolved a dispute that reminds us that we have not seen it all, and probably never will. At its core, the case was about the alleged breach of a contract between plaintiff and defendant. What made it interesting was the subject matter of the alleged breach — plaintiff accused defendant, a residential co-op corporation, of improperly appropriating a portion of his parking space and using it to store a snow blower.
In Sevinc, plaintiff purchased both a unit in the co-op and a parking space in the co-op's parking lot. The lease for the parking space did not describe the space's size, shape, or dimensions, but the size and shape were depicted on the architectural plans that the co-op included in its Public Offering Statement. There was no standard sizes for the parking spaces in the co-op's lot, and some spaces, including plaintiff's space, were larger than others because of where they were situated in the irregularly shaped lot. The size of his space was important to plaintiff because he was a limousine driver and needed extra room to park his Lincoln Town Car.
For almost two years, plaintiff parked in his space without incident. One day in the spring of 2011, however, he pulled in and found that a "metal box" had been placed in the left front corner of his space. A few days later, he saw the building's superintendent installing metal strips to hold the box in place. The superintendent told plaintiff that the co-op was relocating a snow blower to the front of his space and that the metal box would be used to store gas cans for the snowblower. Shortly thereafter, the co-op had white and yellow lines painted on the left side of his space, "all the way from the rear of his space to the front, where the snow blower and gas can container were now located." The newly-configured space was ten-feet wide, the same size as other spaces in the lot but one-third smaller than plaintiff's original space. Plaintiff's car still fit in the space, but pulling in and out was more difficult.
Continue reading “Of Parking Spots and Snow Blowers”
by: Peter J. Gallagher (@pjsgallagher)
On Monday, the Daily News reported on a "landmark" ruling by a Manhattan judge allowing a woman to serve her "elusive husband" with divorce papers via Facebook. The judge order that the divorce papers must be sent to the husband over Facebook "once a week for three consecutive weeks or until acknowledged." According to the article, the husband kept in touch with his wife by phone and through Facebook, but that he had no fixed address and refused to make himself available to be served. After all other conventional methods of service failed — he vacated his last known address in 2011, he had no job, the post office had no forwarding address for him, there was no billing address linked to his prepaid cell phone, and the DMV had no record of him — the judge allowed service through Facebook.
While interesting, this is not actually a landmark decision. Less than one year ago, a Staten Island judge permitted service via Facebook in a similar case. (Obviously, since this took place in my ancestral home, it went unnoticed — the latest proof that Staten Island truly is the "forgotten borough.") In that case, also involving a domestic dispute, a man was allowed to serve his ex-wife with "legal notice that he [did not] want to pay any more child support" via Facebook after more conventional methods of service failed. The man's ex-wife had moved from her last known address and did not provide any forwarding information to the post office. However, she maintained "an active social media account with Facebook," therefore the judge allowed her to be served through that Facebook account.
In addition, several federal courts have also addressed this issue. For example, in one case, the U.S. District Court for the Southern District of New York held that service via Facebook might not, on its own, comport with due process, but it was acceptable as a supplemental method in conjunction with other, more conventional, methods of service. In a different case, a different judge in the U.S. District Court for the Southern District of New York refused to authorize service via Facebook where the plaintiff could not demonstrate that the Facebook profile that the plaintiff proposed to use for service was in fact maintained by the defendant or that the email address listed on the Facebook profile was accessed by the defendant. Although these cases are among the few to have considered the issue, they appear to describe the approach courts are likely to take when faced with a request to permit service via Facebook — if all other methods are exhausted, or service via Facebook is one of several methods to be employed, and if there is some showing that the individual to be served actually maintains and accesses the Facebook account, then service via Facebook would probably be acceptable.