Preview
FILED: KINGS COUNTY CLERK 01/17/2024 10:26 AM INDEX NO. 533290/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
MOULANA AHMED and MARJANA KHATUN, Index No.
533290/2023
Plaintiffs,
-against- AFFIRMATION
IN SUPPORT
TANJIA BEGUM,
Defendant.
DOMINIC L. CHIARIELLO, an attorney duly admitted to
practice law in the courts of the State of New York, hereby affirms the
following to be true, except those statements made upon information
and belief, under the penalties of perjury and pursuant to Rule 2106 of
the CPLR:
1. I am a member of the firm of Chiariello & Chiariello,
attorneys for the plaintiffs, MOULANA AHMED and MARJANA
KHATUN, and as such I am fully familiar with the facts and
circumstances surrounding this action based on a review of the file and
the materials contained therein.
2. I make this affirmation in support of plaintiffs’
motion pursuant to CPLR §§ 314(2) and 308(5) seeking permission to
effect personal service of the summons and verified complaint upon the
CHIARIELLO & CHIARIELLO
147 GLEN STREET
GLEN COVE, NY 11542
defendant, TANJIA BEGUM, in such manner as the Court shall direct;
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and pursuant to CPLR § 306-b extending the time to serve the defendant
in such manner as the court may direct for an additional 120 days.
3. This action was brought to quiet title to the property
known as 230 Forbell Street, Brooklyn, Kings County, New York 11208;
Block 4224, Lot 28, Kings County (hereinafter the “Premises”) pursuant
to Article 15 of the Real Property Actions and Proceedings Law. Exhibit
A – Summons and Verified Complaint (NYSCEF Doc. No. 1).1
4. Plaintiffs respectfully request that their verified
complaint be treated as an affidavit. CPLR 105(u).
5. As described in the Complaint the defendant is a
resident of the nation of Bangladesh. She is a defendant in this action
because she is the widow and sole heir of the plaintiffs’ son Mushin
Ahmed. Mushin Ahmed was named in the deed to the Premises solely
as a convenience to his parents, plaintiffs MOULANA AHMED and
MARJANA KHATUN. Mushin and defendant contributed absolutely
nothing to the purchase, nor to the payment of the mortgage, taxes,
insurance or maintenance/upkeep of the Premises. After naming him in
the deed Mushin travelled to Bangladesh where he met, and eventually
CHIARIELLO & CHIARIELLO
147 GLEN STREET
GLEN COVE, NY 11542
1See CPLR § 2214(c) (a party "need not include copies of papers that were filed previously
electronically with the court, but may make reference to them, giving the docket numbers on
the e-filing system"; Nationstar Mtge., LLC v Bailey, 175 A.D.3d 697, 108 N.Y.S.3d 141 (2d Dept.,
2019). All links operational as of the date hereof.
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married, the defendant, who has never been to the United States. He
returned home alone after his marriage, and tragically died in the
United States days after his first wedding anniversary. He died without
issue, natural or adopted, thus Ms. BEGUM is his sole distributee. By
operation of law due to Mushin Ahmed’s death, defendant TANJIA
BEGUM is a person interested in the Premises as an owner. See generally,
EPTL § 4-1.1(a); Exhibit A.
6. Plaintiffs have been in communication with the
defendant via her mobile phone and email. They have sought to have
her convey her share of the Premises to them, as their son, Mushin, had
agreed, but she refuses.
7. Plaintiffs have a last known post office box address
for Ms. BEGUM, but despite their and my attempts, we are unable to
ascertain her actual residence address. Both my clients and I have
communicated with Ms. BEGUM via email and text messages through
“WhatsApp” but she has not disclosed her actual residence address. We
are at a loss as to how to properly serve her – especially where the cost
of such an international service, and each failed attempt, may be
CHIARIELLO & CHIARIELLO substantial, and impracticable under the circumstances.
147 GLEN STREET
GLEN COVE, NY 11542
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Service of the Defendant is Impracticable
8. Typically, serving a citizen of a foreign country
requires ascertaining whether that country is a member of the Hague
Convention – a treaty to which the United States is a party – and if so,
following the treaty’s requirements for foreign service of process.
Bangladesh is not a member of the Hague Convention for the service of
judicial documents, and the strict methods of service set forth in that
treaty do not apply to this case. See generally, HCCH (Hague Conference on
Private International Law – Conférence de La Haye de droit international
privé) – HCCH Members at https://www.hcch.net/en/states/hcch-members.
9. An action to quiet title is an action in rem not
requiring the court’s personal jurisdiction over the defendant, but rather
requiring that the defendant be “duly notified” of the action. Patrick M.
Connors, Siegel, N.Y. Prac. § 101 at p. 216, § 103 at p. 219 (6th ed.).
“Whether real or personal, if the property is in New York and all P
wants to do is affect D's interest in it . . . the fact that the property is in
the state gives the court all the jurisdiction it needs.” Connors, supra §
103 at p. 218.
10. For in rem cases CPLR § 314(2) provides some
CHIARIELLO & CHIARIELLO
147 GLEN STREET
GLEN COVE, NY 11542 assistance to give defendant due notice of the lawsuit. It allows for
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service of papers on out-of-state parties in the same manner as if they
were in New York. CPLR § 314(2).
11. CPLR § 308 provides the methods of service upon
natural persons within New York. Since we do not know for sure where
the defendant is located, attempts to serve her personally per CPLR §
308.1 would be impracticable and each failed attempt very expensive.
Additionally, the section’s “deliver and mail” (CPLR § 308.2) and “nail
and mail” (CPLR § 308.4) provisions require plaintiffs to know her
“actual place of business, dwelling, or usual place of abode” – despite
our attempts we know none of these things. We only have a last known
post office box address: Village - Kuna Durlovpur, P.O. Kanaighat 3180,
Kanaighat, Sylhet, Bangladesh, which is from the time of her marriage.
12. In an effort to ascertain the potential costs of service
in Bangladesh, I contacted attorney, Aaron Lukken, Esq., whose practice
(Viking Advocates, LLC) is focused on transnational service of process.
After we discussed the details of the case and the issue of service
abroad, he confirmed for me that Bangladesh is not a Hague Convention
nation and estimated that service upon the defendant would likely cost
CHIARIELLO & CHIARIELLO between $5,000.00 and $8,000.00 depending on how difficult she was to
147 GLEN STREET
GLEN COVE, NY 11542
locate. He opined that since this was an action in rem where personal
jurisdiction was not required, but rather notice sufficient to satisfy the
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requirements of due process, that I should first enlist this Court’s
assistance in determining how the defendant should be served under
these circumstances.
13. In this case the plaintiffs provided me with the
defendant’s mobile phone number, and using that information I have
personally contacted the defendant via “WhatsApp” via her mobile
number +880 1319-628251. On December 28, 2023, I specifically
requested from the defendant the best way for her to receive papers
concerning the Premises. On January 11, 2024, I received her response:
“You are requested to send the papers to the address mentions [sic]
below tanjiajannat3@gmail.com.” Exhibit B – Screenshot of WhatsApp
messages between your affirmant and defendant.
14. Since I have established communication with the
defendant via WhatsApp, and since the defendant has requested to
receive papers concerning the Premises via email, plaintiffs respectfully
request that this Court direct the service of the Summons & Complaint
upon the defendant via both WhatsApp and email.
15. Service of process via email “is not prohibited under
CHIARIELLO & CHIARIELLO either state or federal law, or the Hague Convention, given appropriate
147 GLEN STREET
GLEN COVE, NY 11542
circumstances. Indeed, both New York courts and federal courts have,
upon application by plaintiffs, authorized e-mail service of process as an
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appropriate alternative method when the statutory methods have
proven ineffective.” Alfred E. Mann Living Trust v. ETIRC Aviation
S.A.R.L., 78 A.D.3d 137, 141-142, 910 N.Y.S.2d 418, 422 (1st Dept., 2010)
(citing, Snyder v. Alternate Energy Inc., 19 Misc 3d 954, 857 N.Y.S.2d 442
(NYC Civ. Ct., 2008) [permission to serve process by e-mail granted
under CPLR 308(5)]); see also, Kozel v Kozel, 161 A.D.3d 700, 701, 78
N.Y.S.3d 68, 69 (1st Dept., 2018) (lv to appeal dismissed, 32 N.Y.3d 1089, 90
N.Y.S.3d 636 (2018), rearg denied, 32 N.Y.3d 1221, 98 N.Y.S.3d 764 (2019)
[finding "[u]nder the[ ] circumstances, the court properly directed that
[nonparty witness] be served via email"]); Cengage Learning v. Doe 1,
2018 U.S. Dist. LEXIS 239799 at pp. 12-16 (S.D.N.Y., 2018) (copy of case
annexed as Exhibit C).
16. In addition to service via WhatsApp and email,
plaintiffs also respectfully propose that an additional service be made
upon the defendant by mailing a copy of the Summons & Complaint to
her last know post office box address: Village - Kuna Durlovpur, P.O.
Kanaighat 3180, Kanaighat, Sylhet, Bangladesh; and to the Consulate
General of Bangladesh in New York at 34-18 Northern Boulevard,
CHIARIELLO & CHIARIELLO Ground Floor, Long Island City, New York, New York 11101.
147 GLEN STREET
GLEN COVE, NY 11542
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Extension of Time to Serve
17. Plaintiffs commenced this action on November 13,
2023. The time to serve the defendant pursuant to CPLR § 306-b will
expire on March 12, 2024. Due to the impracticable nature of effecting
service on the defendant as described above, plaintiffs respectfully seek
an extension of time to serve the defendant for an additional 120-day
period following this Court’s decision on this application.
18. No previous application for the relief requested
herein has been made to this or any other court or judge.
WHEREFORE, your affirmant respectfully requests that the
within application be granted in its entirety, and for such other and
further relief as to this Court seems just and proper.
Dated: Glen Cove, New York
January 15, 2024
Dominic L. Chiariello
CHIARIELLO & CHIARIELLO
Attorneys for Plaintiffs
MOULANA AHMED
MARJANA KHATUN
Office & P.O. Address
147 Glen Street
Glen Cove, New York 11542
(516) 801-8100
CHIARIELLO & CHIARIELLO
147 GLEN STREET
GLEN COVE, NY 11542
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Preview
FILED: KINGS COUNTY CLERK 01/17/2024 10:26 AM INDEX NO. 533290/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS MOULANA AHMED and MARJANA KHATUN, Index No. 533290/2023 Plaintiffs, -against- AFFIRMATION IN SUPPORT TANJIA BEGUM, Defendant. DOMINIC L. CHIARIELLO, an attorney duly admitted to practice law in the courts of the State of New York, hereby affirms the following to be true, except those statements made upon information and belief, under the penalties of perjury and pursuant to Rule 2106 of the CPLR: 1. I am a member of the firm of Chiariello & Chiariello, attorneys for the plaintiffs, MOULANA AHMED and MARJANA KHATUN, and as such I am fully familiar with the facts and circumstances surrounding this action based on a review of the file and the materials contained therein. 2. I make this affirmation in support of plaintiffs’ motion pursuant to CPLR §§ 314(2) and 308(5) seeking permission to effect personal service of the summons and verified complaint upon the CHIARIELLO & CHIARIELLO 147 GLEN STREET GLEN COVE, NY 11542 defendant, TANJIA BEGUM, in such manner as the Court shall direct; 1 of 8 FILED: KINGS COUNTY CLERK 01/17/2024 10:26 AM INDEX NO. 533290/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2024 and pursuant to CPLR § 306-b extending the time to serve the defendant in such manner as the court may direct for an additional 120 days. 3. This action was brought to quiet title to the property known as 230 Forbell Street, Brooklyn, Kings County, New York 11208; Block 4224, Lot 28, Kings County (hereinafter the “Premises”) pursuant to Article 15 of the Real Property Actions and Proceedings Law. Exhibit A – Summons and Verified Complaint (NYSCEF Doc. No. 1).1 4. Plaintiffs respectfully request that their verified complaint be treated as an affidavit. CPLR 105(u). 5. As described in the Complaint the defendant is a resident of the nation of Bangladesh. She is a defendant in this action because she is the widow and sole heir of the plaintiffs’ son Mushin Ahmed. Mushin Ahmed was named in the deed to the Premises solely as a convenience to his parents, plaintiffs MOULANA AHMED and MARJANA KHATUN. Mushin and defendant contributed absolutely nothing to the purchase, nor to the payment of the mortgage, taxes, insurance or maintenance/upkeep of the Premises. After naming him in the deed Mushin travelled to Bangladesh where he met, and eventually CHIARIELLO & CHIARIELLO 147 GLEN STREET GLEN COVE, NY 11542 1See CPLR § 2214(c) (a party "need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system"; Nationstar Mtge., LLC v Bailey, 175 A.D.3d 697, 108 N.Y.S.3d 141 (2d Dept., 2019). All links operational as of the date hereof. 2 2 of 8 FILED: KINGS COUNTY CLERK 01/17/2024 10:26 AM INDEX NO. 533290/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2024 married, the defendant, who has never been to the United States. He returned home alone after his marriage, and tragically died in the United States days after his first wedding anniversary. He died without issue, natural or adopted, thus Ms. BEGUM is his sole distributee. By operation of law due to Mushin Ahmed’s death, defendant TANJIA BEGUM is a person interested in the Premises as an owner. See generally, EPTL § 4-1.1(a); Exhibit A. 6. Plaintiffs have been in communication with the defendant via her mobile phone and email. They have sought to have her convey her share of the Premises to them, as their son, Mushin, had agreed, but she refuses. 7. Plaintiffs have a last known post office box address for Ms. BEGUM, but despite their and my attempts, we are unable to ascertain her actual residence address. Both my clients and I have communicated with Ms. BEGUM via email and text messages through “WhatsApp” but she has not disclosed her actual residence address. We are at a loss as to how to properly serve her – especially where the cost of such an international service, and each failed attempt, may be CHIARIELLO & CHIARIELLO substantial, and impracticable under the circumstances. 147 GLEN STREET GLEN COVE, NY 11542 3 3 of 8 FILED: KINGS COUNTY CLERK 01/17/2024 10:26 AM INDEX NO. 533290/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2024 Service of the Defendant is Impracticable 8. Typically, serving a citizen of a foreign country requires ascertaining whether that country is a member of the Hague Convention – a treaty to which the United States is a party – and if so, following the treaty’s requirements for foreign service of process. Bangladesh is not a member of the Hague Convention for the service of judicial documents, and the strict methods of service set forth in that treaty do not apply to this case. See generally, HCCH (Hague Conference on Private International Law – Conférence de La Haye de droit international privé) – HCCH Members at https://www.hcch.net/en/states/hcch-members. 9. An action to quiet title is an action in rem not requiring the court’s personal jurisdiction over the defendant, but rather requiring that the defendant be “duly notified” of the action. Patrick M. Connors, Siegel, N.Y. Prac. § 101 at p. 216, § 103 at p. 219 (6th ed.). “Whether real or personal, if the property is in New York and all P wants to do is affect D's interest in it . . . the fact that the property is in the state gives the court all the jurisdiction it needs.” Connors, supra § 103 at p. 218. 10. For in rem cases CPLR § 314(2) provides some CHIARIELLO & CHIARIELLO 147 GLEN STREET GLEN COVE, NY 11542 assistance to give defendant due notice of the lawsuit. It allows for 4 4 of 8 FILED: KINGS COUNTY CLERK 01/17/2024 10:26 AM INDEX NO. 533290/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2024 service of papers on out-of-state parties in the same manner as if they were in New York. CPLR § 314(2). 11. CPLR § 308 provides the methods of service upon natural persons within New York. Since we do not know for sure where the defendant is located, attempts to serve her personally per CPLR § 308.1 would be impracticable and each failed attempt very expensive. Additionally, the section’s “deliver and mail” (CPLR § 308.2) and “nail and mail” (CPLR § 308.4) provisions require plaintiffs to know her “actual place of business, dwelling, or usual place of abode” – despite our attempts we know none of these things. We only have a last known post office box address: Village - Kuna Durlovpur, P.O. Kanaighat 3180, Kanaighat, Sylhet, Bangladesh, which is from the time of her marriage. 12. In an effort to ascertain the potential costs of service in Bangladesh, I contacted attorney, Aaron Lukken, Esq., whose practice (Viking Advocates, LLC) is focused on transnational service of process. After we discussed the details of the case and the issue of service abroad, he confirmed for me that Bangladesh is not a Hague Convention nation and estimated that service upon the defendant would likely cost CHIARIELLO & CHIARIELLO between $5,000.00 and $8,000.00 depending on how difficult she was to 147 GLEN STREET GLEN COVE, NY 11542 locate. He opined that since this was an action in rem where personal jurisdiction was not required, but rather notice sufficient to satisfy the 5 5 of 8 FILED: KINGS COUNTY CLERK 01/17/2024 10:26 AM INDEX NO. 533290/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2024 requirements of due process, that I should first enlist this Court’s assistance in determining how the defendant should be served under these circumstances. 13. In this case the plaintiffs provided me with the defendant’s mobile phone number, and using that information I have personally contacted the defendant via “WhatsApp” via her mobile number +880 1319-628251. On December 28, 2023, I specifically requested from the defendant the best way for her to receive papers concerning the Premises. On January 11, 2024, I received her response: “You are requested to send the papers to the address mentions [sic] below tanjiajannat3@gmail.com.” Exhibit B – Screenshot of WhatsApp messages between your affirmant and defendant. 14. Since I have established communication with the defendant via WhatsApp, and since the defendant has requested to receive papers concerning the Premises via email, plaintiffs respectfully request that this Court direct the service of the Summons & Complaint upon the defendant via both WhatsApp and email. 15. Service of process via email “is not prohibited under CHIARIELLO & CHIARIELLO either state or federal law, or the Hague Convention, given appropriate 147 GLEN STREET GLEN COVE, NY 11542 circumstances. Indeed, both New York courts and federal courts have, upon application by plaintiffs, authorized e-mail service of process as an 6 6 of 8 FILED: KINGS COUNTY CLERK 01/17/2024 10:26 AM INDEX NO. 533290/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2024 appropriate alternative method when the statutory methods have proven ineffective.” Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L., 78 A.D.3d 137, 141-142, 910 N.Y.S.2d 418, 422 (1st Dept., 2010) (citing, Snyder v. Alternate Energy Inc., 19 Misc 3d 954, 857 N.Y.S.2d 442 (NYC Civ. Ct., 2008) [permission to serve process by e-mail granted under CPLR 308(5)]); see also, Kozel v Kozel, 161 A.D.3d 700, 701, 78 N.Y.S.3d 68, 69 (1st Dept., 2018) (lv to appeal dismissed, 32 N.Y.3d 1089, 90 N.Y.S.3d 636 (2018), rearg denied, 32 N.Y.3d 1221, 98 N.Y.S.3d 764 (2019) [finding "[u]nder the[ ] circumstances, the court properly directed that [nonparty witness] be served via email"]); Cengage Learning v. Doe 1, 2018 U.S. Dist. LEXIS 239799 at pp. 12-16 (S.D.N.Y., 2018) (copy of case annexed as Exhibit C). 16. In addition to service via WhatsApp and email, plaintiffs also respectfully propose that an additional service be made upon the defendant by mailing a copy of the Summons & Complaint to her last know post office box address: Village - Kuna Durlovpur, P.O. Kanaighat 3180, Kanaighat, Sylhet, Bangladesh; and to the Consulate General of Bangladesh in New York at 34-18 Northern Boulevard, CHIARIELLO & CHIARIELLO Ground Floor, Long Island City, New York, New York 11101. 147 GLEN STREET GLEN COVE, NY 11542 7 7 of 8 FILED: KINGS COUNTY CLERK 01/17/2024 10:26 AM INDEX NO. 533290/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2024 Extension of Time to Serve 17. Plaintiffs commenced this action on November 13, 2023. The time to serve the defendant pursuant to CPLR § 306-b will expire on March 12, 2024. Due to the impracticable nature of effecting service on the defendant as described above, plaintiffs respectfully seek an extension of time to serve the defendant for an additional 120-day period following this Court’s decision on this application. 18. No previous application for the relief requested herein has been made to this or any other court or judge. WHEREFORE, your affirmant respectfully requests that the within application be granted in its entirety, and for such other and further relief as to this Court seems just and proper. Dated: Glen Cove, New York January 15, 2024 Dominic L. Chiariello CHIARIELLO & CHIARIELLO Attorneys for Plaintiffs MOULANA AHMED MARJANA KHATUN Office & P.O. Address 147 Glen Street Glen Cove, New York 11542 (516) 801-8100 CHIARIELLO & CHIARIELLO 147 GLEN STREET GLEN COVE, NY 11542 8 8 of 8