Trustees Of The New York City District Council Of Carpenters Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman Retraining, Educational and Industry Fund v. Petta Contracting Inc.

VIRGINIA DOCUMENT ELECTRONICALLY FILED & AMBINDER LLP DOC #: A t t o f noe iy § a ft Ll a ow DATE FILED: 9/14/2022 AO Broad Street, 7 Floor New York, New York 10004 Telephone: (212) 943-9080 Charles Virginia Partner cvirginia @ vandallp.com September 13, 2022 VIA ECF Hon. Analisa Torres United States District Court Southern District of New York 500 Pearl Street New York, New York 10007 RE: = Trustees of the New York City District Council of Carpenters Pension Fund, et al., v. Petta Contracting, Inc., Case no. 22 CV 7268 (AT) Dear Judge Torres: This firm represents the Petitioners in the above-referenced action. We write in connection with the Court’s August 29, 2022 Order (“Order”) which, inter alia, required that personal service of the pleadings be made upon the Respondent, which is a New York corporation. Petitioners learned today that their process server had failed to properly serve Respondent. For the reasons set forth below, Petitioners request a six-week extension of time through October 25, 2022 to personally serve the Respondent pursuant to the Order and N.Y. C.P.L.R. § 311 . Petitioners also respectfully request a corresponding extension of time of the briefing schedule set forth in the Order, in order to ensure that the pleadings are served in accordance with the Order prior to commencement of the summary judgment process. This is the first such request for an extension of time to personally serve Respondent, and the first such corresponding request for an extension of the related filing deadlines. In accordance with the Order, Petitioners arranged on September 1, 2022 for the petition and Order to be personally served upon Respondent. Petitioners’ process server, per the affidavit of service provided, attempted on three occasions to serve the Respondent personally at the last known residence of the owner of the corporate Respondent. When these attempts were not successful, the process server used a substitute service method. Petitioners received the affidavit from the process server today, September 13, 2022, thus learning that “nail-and-mail” service (see N.Y. C.P.L.R. § 308 (4)) had been effected on September 12, 2022. A copy of the affidavit of service is annexed hereto for reference purposes as Exhibit 1. Petitioners acknowledge that the case law in New York makes clear that a corporation cannot be served via “nail-and-mail.” See, VIRGINIA & AMBINDER LLP A t t o f noe iy § a ft Ll a ow e.g., Lakeside Concrete Corp. v. Pine Hollow Bldg. Corp., 479 NYS2d 256 (2d. Dept. 1984), aff'd 65 NY2d 865 (N.Y. 1985); see also Gabr Int'l Trading Corp. v. Birdsall, 2009 U.S. Dist. LEXIS 129814 , at *2 (E.D.N.Y. Feb. 12, 2009) (report and recommendation adopted at 2009 U.S. Dist. LEXIS 125507 ). Accordingly, the affidavit of service received from the process server today is invalid. See Ex. 1. Given the foregoing facts, Petitioners respectfully request a six-week extension of time to properly serve Respondent personally with the papers in this action, with a corresponding sixweek extension of the deadlines in the Order, in order to ensure that Respondent is personally served before starting the clock on its time to oppose confirmation of the arbitration award. The current and proposed deadlines are set forth below, with the deadlines from the Order struck through for clarity. Deadline, pursuant to the August 29, 2022 Order | Current Date Proposed Date Petitioner to personally serve Respondent with the | Septembert2,2022 | October 25, 2022 Petition and Order Petitioner to file proof of personal service | Septeraber 19-2022 November 1, 2022 Petitioner to file Rule 56.1 Statement and Septembert9.2022 | November 1, 2022 additional supporting documents Respondent to file opposition, if an November 15, 2022 Petitioner to file reply, if an November 29, 2022 We thank the Court for its time and attention to this matter. Very truly yours, /s/ Charles Virginia Charles Virginia, Esq. GRANTED. SO ORDERED. Dated: September 14, 2022 ANALISA TORRES New York, New York United States District Judge