B.B., Plaintiff, v. F.S., A.G., Defendants. (2023)

The following papers were read on this motion:

Notice of Motion for Default Judgment and Supporting Papers [Seq. 002] X

Affirmation in Opposition [Seq. 002] X

Reply Affirmation [Seq. 002] X

Upon the foregoing e-filed papers, the motion filed by the plaintiff, B.B. ["Plaintiff"], for an Order pursuant to CPLR § 3215, granting him default judgment only against defendant A.G. ["G." or "Defaulting Defendant"] and for an Order pursuant to CPLR §§ 305 and 2001 amending the Affidavit of Service with respect to Defendant G., is determined as set forth below:

The Plaintiff commenced the instant breach of contract/lease action by filing a Summons and Complaint on May 12, 2022. The Plaintiff now moves for default judgment against Defendant G. for the failure to timely answer the Summons and Complaint in this matter.

CPLR § 3215 (a) permits a plaintiff to seek default when the defendant has failed to appear. "On a motion for leave to enter a default judgment pursuant to CPLR § 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party's default in answering or appearing". (Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc., 89 AD3d 649, 651 [2d Dept. 2011]; CPLR § 3215[f]). A plaintiff seeking a default judgment under CPLR § 3215 must present prima facie proof of a cause of action, and while a defaulting defendant admits all factual allegations of the complaint and all reasonable inferences therefrom, the legal conclusions to be drawn from such proof are reserved for the Supreme Court's determination. (McGee v. Dunn, 75 AD3d 624, 624 [2d Dept. 2010] [citations omitted]). However, considering that in default proceedings the defendant has failed to appear and the plaintiff does not have the benefit of discovery, the plaintiff's affidavit of merit or Verified Complaint need only allege enough facts to enable a court to determine that a viable cause of action exists. (See Woodson v. Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]).

In this case, the Summons and Complaint are appended as Exhibit 1 to the Plaintiff's motion. Exhibit 2 to the Plaintiff's motion is a copy of the "original" Affidavit of Service with respect to the Defaulting Defendant. Together therewith, the Plaintiff submits an "Attorney Affirmation Or [sic] Service Summons & Complaint on A.G.". (Original Affidavit of Service and Attorney Affirmation of Service are collectively appended as Exhibit 2 to the Plaintiff's motion). The affidavits of service indicate that the Plaintiff, through his counsel, Michael Goldman, Esq., served Defendant A.G. by personal delivery pursuant to CPLR 308(1) ["by delivering the summons within the state to the person to be served"]. Mr. Goldman avers in the Original Affidavit of Service that he knows who Defendant G. is and that Mr. Goldman personally served him on May 14, 2022. The Original Affidavit of Service describes Mr. G. as a male with white skin, with "grayish whiteish" hair who is balding, and between 51 to 65 years of age, between 5'9" and 6'0", and between 161 to 200 lbs. In the Military Service portion of the Original Affidavit of Service, Mr. Goldman again avers that he knows the Defendant and avers that Mr. G. is not in the military. He further avers that he handed Mr. G. "2 copies" of the summons and Complaint, one for him personally and one for his wife Defendant S., and that he warned him that it is a lawsuit and to contact a lawyer.

The Original Affidavit of Service omitted the address at which personal service was made upon Defendant G. Therefore, the Plaintiff moves, in part, for an Order pursuant to CPLR §§ 2001 and 305 granting leave to amend the Original Affidavit of Service to reflect the address where Defendant A.G. was purportedly served.

"CPLR 2001 may be used to cure only a 'technical infirmity' ". (Matter of Ruffin v Lion Corp., 15 NY3d 578, 582 [2010], citations omitted). "In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant—notice that must be 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections' ". (Ruffin v Lion Corp., 15 NY3d 578, 582-83 [2010], citations omitted).

Defendant G. opposes the Plaintiff's application to amend the affidavit of service and argues that an affidavit of service that does not state where service occurred is insufficient to constitute proof of proper service and further argues that in such a case the Court will dismiss the Complaint for lack of personal jurisdiction. (citing to Concerned Citizens Org. v. Redman, 133 AD2d 439 [2d Dept 1987]).

Under the specific circumstances of this case, the Court finds that the failure to state the address or place where Defendant G. was personally delivered the Summons and Complaint constitutes a technical defect which may be amended pursuant to CPLR 2001. The Court has reached this determination based on the fact, inter alia, that CPLR 308(1) which governs personal delivery of process, provides that such service is accomplished "by delivering the summons within the state to the person to be served", without any requirement that such delivery take place at any specific location or type of address or place [compare to, e.g., CPLR 308(2), requiring delivery of the summons to a "person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode of the person to be served"... and CPLR 308(4), requiring the affixing of "the summons to the door of either the actual place of business, dwelling place, or usual place of abode within the state of the person to be served..."]. Delivery of the process directly to the individual to be served provides a concrete means of confirming that the Defendant received the required notice [see Ruffin, 15 NY3d at 582-83], while there is an element of uncertainty as to notice when other methods of service are used.

Additionally, in this particular case, as the party who delivered the Summons and Complaint has averred that he knows the Defendant, and as the affidavit of service includes a factual description of the Defendant to whom process was personally delivered, and as the Defendant has not disputed that the process server knows him and does not dispute the process server's description of his appearance or that the process server in fact delivered the Summons and Complaint to him, the Court finds that the failure to initially indicate the location where the Summons and Complaint was delivered to the Defendant does not frustrate the core principles of notice to the Defendant and that such defect may be amended under CPLR 2001. (See Segway of New York, Inc. v. Udit Group, Inc., 120 AD3d 789, 791 [2d Dept 2014][citations omitted]).

Therefore, the portion of the Plaintiff's motion which seeks to amend the Affidavit of Service regarding Defendant A.G. is GRANTED, and the proposed Amended Affirmation of Service submitted as Exhibit 14 to the Plaintiff's motion (NYSCEF Doc. No. 53) is deemed as filed with the Court nunc pro tunc.

In light of the foregoing, the Plaintiff's default motion also includes proof that the Summons and Complaint were served upon Defendant G. on May 14, 2022. (CPLR 3215). The Plaintiff has established the Defendant's default through the affirmation of his counsel, Michael Goldman, Esq., in which Mr. Goldman avers, inter alia, that the Defaulting Defendant e-filed two late answers, both of which were rejected by the Plaintiff's counsel. The Defendant's first late Answer and second late Answer are appended as Exhibits 3 and 5, respectively, to the Plaintiff's Default Motion. The Plaintiff's Notices of Rejection to the Defendant's first late Answer and second late Answer are appended as Exhibits 4 and 6, respectively, to the Plaintiff's Default Motion. The Court finds that the Plaintiff has satisfied the requirement of establishing the Defendant's default as required pursuant to CPLR 3215(f).

The Plaintiff's default motion also includes an affidavit of merit from the Plaintiff, B.B., in which the Plaintiff details the proof of the facts constituting the Plaintiff's claims against the Defendants, as required pursuant to CPLR 3215(f). The Plaintiff's motion also includes proof of additional Notice as required pursuant to CPLR 3215(g).

As the Plaintiff has provided the proof of default required under CPLR 3215(f), his motion for default judgment must be granted unless the Defaulting Defendant demonstrates both a reasonable excuse for the default and a meritorious defense. (Giovanelli v Rivera, 23 AD3d 616, 616 [2d Dept 2005], citations omitted). In this case, the Court finds that the Defaulting Defendant has failed to do so, and therefore the Plaintiff's motion for default judgment shall be GRANTED in its entirety. (See Giovanelli, 23 AD3d at 616).

Accordingly, it is hereby,

ORDERED, that the Plaintiff's motion for an Order pursuant to CPLR § 3215 granting him default judgment only against Defendant A.G. and an Order granting him leave to amend the Affidavit of Service pursuant to CPLR 2001 is GRANTED, in its entirety; and it is further,

ORDERED, that the Plaintiff's Amended Proposed Affirmation of Service e-filed as NYSCEF Document No. 53 is hereby deemed as filed with the Court, nunc pro tunc; and it is further,

ORDERED, that an inquest on damages will be held at the time the case against the answering Defendant, F.S., goes to trial or is otherwise resolved; and it is further,

ORDERED, that all requests for relief not specifically addressed herein shall be deemed DENIED.

This constitutes the Decision and Order of the Court.

Dated: May 23, 2023

Mineola, NY

HON. CONRAD D. SINGER, J.S.C.

Conrad D. Singer, J.