Headwater Foods, Inc., Plaintiff(s), v. NY LLC ERIKA NAKAMURA JOCELYN GUEST (2026)

This case illustrates that where a plaintiff fails to serve notice of entry of an order denying a defendant's pre-answer motion to dismiss under CPLR 3211, the defendant's time to answer never begins to run, and a motion for a default judgment is premature because no default has occurred.

Plaintiff Headwater Foods, Inc. ("plaintiff") commenced this action to recover $7,067.41 for goods sold and delivered to defendant Butcher Girls NY LLC ("defendant"). Plaintiff also alleges that defendants Erika Nakamura and Jocelyn Guest executed personal guaranties obligating them to satisfy the indebtedness of the corporate defendant. The action was commenced on April 26, 2024, and service was effectuated upon all defendants during June and July 2024. On July 9, 2024, defendants moved pre-answer to dismiss the complaint pursuant to CPLR 3211. That motion was denied on November 7, 2024, after defendants failed to appear. Defendants have not served an answer, and plaintiff thereafter moved, by notice of motion dated April 15, 2026, for leave to enter a default judgment pursuant to CPLR 3215. Defendants oppose the motion and cross-move to dismiss the complaint against the individual defendants for lack of personal jurisdiction or, alternatively, for leave to serve a late answer.

Plaintiff's Motion for Default Judgment

Plaintiff seeks a default judgment pursuant to CPLR 3215. Although the parties devote substantial attention to CPLR 3215(c) and whether plaintiff demonstrated sufficient cause for bringing its motion more than one year after defendants allegedly defaulted, the threshold issue is whether defendants are, in fact, in default. CPLR 3211(f) provides that where a defendant makes a timely pre-answer motion to dismiss, service of the responsive pleading is required "within ten days after service of notice of entry of the order." Thus, where a plaintiff fails to serve notice of entry of an order denying a defendant's CPLR 3211 motion, the defendant's time to answer never begins to run, and the defendant is not in default. (See Adago v. Sy, 246 AD3d 422, 423 [1st Dept 2026]; DLJ Mtge. Capital, Inc. v. Christie, 202 AD3d 913, 916 [2d Dept 2022]; DeFalco v. JRS Confectionary, Inc., 118 AD2d 752, 753 [2d Dept 1986].

Here, defendants timely moved to dismiss the complaint pursuant to CPLR 3211. Although that motion was denied on November 7, 2024, plaintiff does not contend, and the record does not demonstrate, that it ever served defendants with notice of entry of that order. Consequently, defendants' statutory time to serve an answer has never commenced, and defendants are not presently in default. Since defendants have not defaulted, plaintiff's motion for a default judgment is premature and must be denied. Likewise, CPLR 3215(c), which applies only where a plaintiff fails to seek a default judgment within one year after a defendant's default, has no application here because no default has yet occurred.

Defendants' Cross-Motion

Defendants also seek dismissal of the complaint against defendants Nakamura and Guest for lack of personal jurisdiction, contending that the affidavits of service contain several errors, including identifying the court as the Supreme Court rather than the Civil Court, omitting the year from the index number, and misspelling "Butcher Girls" as "Butchet Girls."

An affidavit of service ordinarily constitutes prima facie evidence of proper service and gives rise to a presumption of proper service. (See Wells Fargo Bank, N.A. v. Chaplin, 65 AD3d 588, 589 [2d Dept 2009]. Minor typographical or clerical errors in an affidavit of service, however, are generally nonjurisdictional irregularities that do not invalidate otherwise proper service. (See JPMorgan Chase Bank, N.A. v. Grinkorn, 172 AD3d 1183 [2d Dept 2019]; State Higher Educ. Servs. Corp. v. Sparozic, 35 AD3d 1069, 1070 [3d Dept 2006].) The defects identified by defendants concern only clerical inaccuracies in the affidavits of service and do not relate to the manner in which service was made. Plaintiff has since filed corrected affidavits reflecting the same service previously effected. Under these circumstances, the identified irregularities do not deprive the Court of personal jurisdiction over the individual defendants. Accordingly, the branch of defendants' cross-motion seeking dismissal for lack of personal jurisdiction is denied.

Conclusion

Plaintiff has failed to establish that defendants are in default because defendants' time to answer has not yet begun to run under CPLR 3211(f). Accordingly, plaintiff's motion for a default judgment is denied. Defendants' motion to dismiss the complaint for lack of personal jurisdiction is likewise denied.. To move this matter forward and in the interest of judicial economy, plaintiff shall serve notice of entry of this decision and order upon defendants within ten (10) days after entry. Defendants shall serve and file an answer within ten (10) days after service of notice of entry, as provided by CPLR 3211(f). This constitutes the decision and order of the Court.

Dated: July 17, 2026

Hon. Tehilah H. Berman

Judge of the Civil Court, Kings County

Tehilah H. Berman, J.