17‐1265
Piers Gardner v. Surie Lefkowitz
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 21st day of September, two thousand
eighteen.
PRESENT: JON O. NEWMAN,
DENNIS JACOBS,
ROSEMARY S. POOLER,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
PIERS GARDNER,
Plaintiff‐Appellee,
‐v.‐ 17‐1265
SURIE LEFKOWITZ,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
1
FOR APPELLANT: Jeffrey R. Berke, Berke & Berke, New
York, NY.
FOR APPELLEE: James P. Cinque, Cinque & Cinque,
P.C., New York, NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Batts, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court be
VACATED IN PART AND REMANDED.
Defendant Surie Lefkowitz appeals from a March 30, 2017 order denying
her motion to vacate a default judgment and for sanctions. On appeal, Lefkowitz
argues, inter alia, that the district court erred in concluding that: (1) service of
process on Lefkowitz by Plaintiff Piers Gardner was proper; (2) Lefkowitz failed
to demonstrate the existence of a meritorious defense; and (3) vacating the default
judgment would prejudice Gardner. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues presented for review.
Gardner, an English barrister, alleged that he was retained by Lefkowitz in
May 2002 to provide legal services to prevent the extradition of her brother from
Austria to the United States, and that, after an initial payment in 2002, Lefkowitz
breached her agreement to pay his fees. Gardner filed a diversity suit in June
2005, and in October 2005 the district court entered a default judgment against
Lefkowitz in the amount of $180,493.82. Following prolonged proceedings,
including a previous appeal to this Court, the district court issued an order on
March 30, 2017, denying Lefkowitz’s motion to vacate the default judgment and
for sanctions. This appeal follows.
1. The district court concluded that Gardner effected service of the
summons and complaint through so‐called “nail and mail” service. Lefkowitz
contends that such alternate service is invalid because it is permitted by New
2
York Civil Practice Law and Rules § 308(4) only if Gardner exercised “due
diligence” in attempting to effect service by personal delivery or delivery to a
person of suitable age and discretion, and that Gardner failed to do so.
It is a close question, but service was acceptable in this case. The process
server made three attempts at personal service of the summons and complaint, on
June 17, 2005, at 10:20am; July 5, 2005, at 7:00am; and July 6, 2005, at 6:55pm. The
process server also spoke with Lefkowitz’s neighbor, who confirmed that
Lefkowitz lived at the address at which service was attempted. These efforts
were sufficient to permit Gardner’s use of “nail and mail” service. See S.E.C. v.
Reynolds, 112 F.3d 505, at *2 (2d Cir. 1996) (unpublished table opinion) (three
attempts to effect personal service at an address confirmed by a neighbor to be the
defendant’s residence, “including two during non‐business hours, satisfy the due
diligence requirement”).
2. The district court concluded that Lefkowitz “failed to ‘present
evidence of facts that, if proven at trial, would constitute a complete defense’” to
Gardner’s claims. Appellant’s Appendix (“App’x”) at 266 (quoting S.E.C. v.
McNulty, 137 F.3d 732, 740 (2d Cir. 1998)). “A defense is meritorious if it is good
at law so as to give the factfinder some determination to make.” Am. All. Ins.
Co. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996) (internal quotation marks
omitted). We review a district court’s denial of a motion to vacate a default
judgment for abuse of discretion. D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 107
(2d Cir. 2006).
Lefkowitz argues that any agreement between her and Gardner is
unenforceable, because Gardner has failed to produce a written retainer
agreement or letter of engagement. However, the provision of New York law
that she relies upon does not apply to a “representation where the attorney is
admitted to practice in another jurisdiction and maintains no office in the State of
New York, or where no material portion of the services are to be rendered in New
York.” N.Y. Comp. Codes R. & Regs. tit. 22, § 1215.2(d). Lefkowitz has failed to
present facts supporting the applicability of that provision to this case, where
Gardner (an English barrister) provided legal services in Switzerland to contest
an extradition from Austria.
3
Gardner contends that Lefkowitz agreed to pay the fees he incurred in
contesting her brother’s extradition, but Lefkowitz claims that she never had any
contractual relationship with Gardner. Importantly, while Gardner alleges that
Lefkowitz made a partial payment towards his fees in June 2002 via a wire
transfer from a Brooklyn law firm, Lefkowitz does not contest the fact of this
partial payment or that she made it. Rather, she evades the issue by simply
asserting that the law firm did not serve as her lawyers. Under New York law,
Lefkowitz’s undisputed partial payment of Gardner’s fees establishes an
agreement sufficient to support Gardner’s claims.1 LeBoeuf, Lamb, Greene &
MacRae, L.L.P. v. Worsham, 185 F.3d 61, 64 (2d Cir. 1999) (an agreement
supporting an account stated claim “may be implied . . . if the debtor makes
partial payment” (internal quotation marks omitted)).
Nevertheless, there is a substantial question as to whether Lefkowitz has a
meritorious defense regarding the scope of her retention of Gardner.
Lefkowitz’s brother was purportedly extradited to the United States on June 9,
2002. But the vast majority of fees Gardner claims were incurred after the date of
extradition. While Gardner claims Lefkowitz agreed that he would perform
post‐extradition work involving the United Nations Human Rights Committee,
Lefkowitz’s denial of agreement with Gardner implicitly raises a question of fact
as to whether the scope of the parties’ agreement encompassed services that
resulted in such substantial fees. See LeBoeuf, 185 F.3d at 65.
Further proceedings are therefore required to determine the scope of the
agreement between Gardner and Lefkowitz. We need not consider Lefkowitz’s
remaining arguments at this time.
1 We assume that New York law governs. Lefkowitz’s brief relies on New York
law, and Gardner does not specify the law that he believes applies to this case.
Any choice of law issues can be clarified, if necessary, in future proceedings.
4
The judgment of the district court is therefore VACATED insofar as it
denied Lefkowitz’s motion to vacate the default judgment, and the case is
REMANDED for further proceedings consistent with this summary order.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
5