GONZALEZ v. LAKESIDE RECEIVABLES SERVICES LLC (2023)

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

Papers/Numbered

Notice of Motion and Affirmation/Affidavit annexed 1-2

Upon the foregoing cited papers, the Decision/Order on the Plaintiff's motion for default is as follows:

Plaintiff brings the instant motion seeking a default judgment against the Defendant for failing to timely interpose an answer in this matter. Plaintiff brought a prior motion seeking the same relief which was withdrawn by counsel on the motion return date.

A plaintiff seeking leave to enter a default judgment must “file proof of proper service of the summons and the complaint, the defendant's default, and the facts constituting the claim” (See CPLR 3215(f); Glob. Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC, 153 AD3d 606, 606 [2d Dept 2017]).

Pursuant to CPLR 311-a, service upon a limited liability company may be made by

“delivering a copy personally to (i) any member of the limited liability company in this state, if the management of the limited liability company is vested in its members, (ii) any manager of the limited liability company in this state, if the management of the limited liability company is vested in one or more managers, (iii) to any other agent authorized by appointment to receive process, or (iv) to any other person designated by the limited liability company to receive process, in the manner provided by law for service of a summons as if such person was a defendant. Service of process upon a limited liability company may also be made pursuant to article three of the limited liability company law.”

Alternatively, service upon a limited liability company may be made upon the New York Secretary of State (See NY Limit Liab Co § 303).

As detailed in Plaintiff's papers, both the affidavit of service and the instant motion were served upon the law firm of Lippes Mathias Wexler Friedman, LLP. This firm has not filed a notice of appearance in this matter nor has the Plaintiff filed any papers showing this firm is representing the Defendant or is the registered agent for the Defendant. In fact, on the affidavit of service, the boxes noted “Registered Agent” or “Officer/Agent” are unchecked, and the process server states service was made on “Other: ․ Attorney.”

Plaintiff's attorney states that the Plaintiff properly effectuated service upon the Defendant, citing the affidavit of service annexed as Exhibit “2” to Plaintiff's moving papers. However, there is nothing before this Court to show that this firm was authorized to accept service of these documents on behalf of the Defendant in this matter.

In this instance, the Court finds the proof of service offered by the Plaintiff to be facially insufficient to support a conclusion that the Defendant was properly served. While lack of jurisdiction is an affirmative defense, the Court will not overlook a defective service of process in an unopposed motion for default judgment.

Accordingly, it is hereby

ORDERED that the Plaintiff's motion is DENIED as defective. Plaintiff's papers are, therefore, rejected as defective without reaching, considering, or addressing the contentions raised in them.

The foregoing constitutes the Decision and Order of the Court.

Robert J. Helbock, Jr., J.