DALRYMPLE v. JBJ AUTO TRADING LLC (2024)

DECISION & ORDER

In an action to recover damages for personal injuries and wrongful death, etc., the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated January 14, 2022, and (2) an order of the same court dated March 3, 2022.  The order dated January 14, 2022, denied the plaintiff's motion for leave to enter a default judgment against the defendants JBJ Auto Trading, LLC, and “John Doe.” The order dated March 3, 2022, insofar as appealed from, in effect, upon reargument, adhered to the prior determination in the order dated January 14, 2022.

ORDERED that the appeal from the order dated January 14, 2022, is dismissed, without costs or disbursements, as that order was superseded by the order dated March 3, 2022, made, in effect, upon reargument;  and it is further,

ORDERED that the order dated March 3, 2022, is affirmed insofar as appealed from, without costs or disbursements.

In February 2021, following an accident in which the plaintiff's father was struck by an automobile and killed, the plaintiff, individually and as administrator of the estate of his father, commenced this action against, among others, JBJ Auto Trading, LLC, and “John Doe” (hereinafter together the defendants) to recover damages for personal injuries and wrongful death.  The plaintiff purportedly served the summons and complaint upon the defendants pursuant to Vehicle and Traffic Law § 253.  The defendants failed to answer the complaint.  In November 2021, the plaintiff moved for leave to enter a default judgment against the defendants.  In an order dated January 14, 2022, the Supreme Court denied the plaintiff's motion.  Thereafter, the plaintiff moved for leave to reargue his prior motion for leave to enter a default judgment against the defendants.  In an order dated March 3, 2022, the court, inter alia, in effect, upon reargument, adhered to its determination in the order dated January 14, 2022, denying the plaintiff's motion for leave to enter a default judgment against the defendants.  The plaintiff appeals.

“On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to submit proof of service of the summons and complaint, the facts constituting the cause of action, and the defendant's default in answering or appearing” (Maldonado v. Mosquera, 186 A.D.3d 1352, 1353, 129 N.Y.S.3d 15 [internal quotation marks omitted]).  “Where the plaintiff fails to present proof of valid service of the summons and complaint, a motion for leave to enter a default judgment pursuant to CPLR 3215 is properly denied” (Lewis v. Solny, 172 A.D.3d 1352, 1354, 99 N.Y.S.3d 647;  see Eastern Funding LLC v. San Jose 63 Corp., 172 A.D.3d 818, 819, 98 N.Y.S.3d 444).

Here, the plaintiff failed to demonstrate proper service of the summons and complaint upon the defendants pursuant to Vehicle and Traffic Law § 253.  “Effective service under [Vehicle and Traffic Law § 253] has two elements—service upon the Secretary of State and service upon the defendant by certified or registered mail” (Ross v. Hudson, 303 A.D.2d 393, 393, 755 N.Y.S.2d 875).  Although the plaintiff established that he effected service upon the Secretary of State, the plaintiff failed to establish that the defendants were served with the summons and complaint by certified or registered mail (see Vehicle and Traffic Law § 253;  Bingham v. Ryder Truck Rental, 110 A.D.2d 867, 869, 488 N.Y.S.2d 424;  Stewart v. McIntyre, 57 A.D.2d 831, 832, 394 N.Y.S.2d 58).

Accordingly, the Supreme Court, in effect, upon reargument, properly adhered to its determination in the order dated January 14, 2022, denying the plaintiff's motion for leave to enter a default judgment against the defendants.

CONNOLLY, J.P., GENOVESI, WARHIT and WAN, JJ., concur.