REZNICK v. ROCHE (2022)

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiff Russell I. Reznick (hereinafter Reznick or plaintiff) filed on September 1, 2021, under motion sequence number two, for an order pursuant to CPLR 3215 granting a default judgment against the defendant Jhonatan Abreu (hereinafter Abreu) for failure to appear or respond to the summons and verified complaint. The motion is unopposed.

Notice of motion

Affirmation in support

Affidavit in support

Exhibits A-B

BACKGROUND

On January 5, 2021, plaintiff commenced the instant action by filing a summons and verified complaint (herewith the commencement papers) with the Kings County Clerk's office. On January 31, 2021, the plaintiff filed four affidavits alleging service of the commencement papers on defendants Cara Roche, Jerry Russo, Frederic N. Noubissi, and Jhonatan Abreu. Of those four affidavits, the one pertaining to service of the commencement papers upon defendant Abreu was signed by the plaintiff before a notary public on January 12, 2021. The plaintiff averred, therein that on January 5, 2021, at 12:09 p.m., he personally delivered the commencement papers on Abreu.

On January 5, 2021, Abreu filed a notice of appearance with the Kings County Clerk's office.

On January 25. 2021, defendants Cara Roche and Jerry Russo filed a joint answer with cross claims the Kings County Clerk's office.

LAW AND APPLICATION

The plaintiff seeks a default judgment against defendant Abreu for failure to answer the complaint. On a motion for leave to enter a default judgment pursuant to CPLR 3215, the plaintiff must prove proper service of the summons and complaint on the defendant (Haberman v Zoning Bd. of Appeals of City of Long Beach, 152 AD3d 683, 684 [2nd Dept 2017]). Additionally, the plaintiff must submit proof of the defendant's default in answering or appearing (Atl. Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2nd Dept 2011] and must submit proof of facts sufficient to establish a viable claim (Id.); also see CPLR 3215 (f)).

On March 9, 2021, Reznick filed a motion pursuant to CPLR 3215 under motion sequence number one, for an order granting a default judgment against defendant Abreu for failure to respond to the summons and verified complaint. By decision and order dated May 26, 2021, the Supreme Court denied Reznick's motion under motion sequence one because the plaintiff served the commencement papers on Abreu contrary to the requirements of CPLR 2103 (a).

There is no dispute that in his first attempt at service, Reznick did not use an authorized process server and instead personally delivered the commencement papers on Abreu himself. CPLR 2103 (a) sets forth who may serve papers as follows. Except where otherwise prescribed by law or order of court, papers may be served by any person not a party of the age of eighteen years or over (NY CPLR 2103 [McKinney]). In the matter of Sloan v Knapp, 10 AD3d 434, 434-435 [2nd Dept 2014], the Appellate Division Second Department affirmed the order of the Supreme Court denying and dismissing the petition because the petitioner served the petition on the respondent contrary to CPLR 2103 (a). In the Sloan decision the Appellate Division Second Department stated that “the express provisions of CPLR 2103 (a) may not be ignored or overlooked any more than may the provisions of other statutes defining the methodology of service.” For the foregoing reason, the Supreme Court properly issued a decision and order dated May 26, 2021, which denied Reznick's first motion for a default judgment against Abreu.

Thereafter Reznick made another attempt to serve the commencement papers upon Abreu. On July 27, 2021, Reznick filed an affidavit of service of that attempt with the Kings County Clerk's office. Reznick included that affidavit of service with the instant motion. That affidavit was signed by plaintiff's process server, Denise Lewis (hereinafter Lewis), before a notary public on July 19, 2021. Lewis' affidavit demonstrated that the attempts at service upon Abreu was pursuant to CPLR 308 (2). CPLR 308 (2) provides that service is deemed complete ten days after the affidavit of service is filed with KCCO (see Reem Contracting v Altschul & Altschul, 117 AD3d 583 [1st Dept 2014]). Therefore, according to Lewis's affidavit of service, service of the commencement papers upon Abreu was completed on August 6, 2021.

With exceptions not relevant here, under CPLR 306—b, service of the summons and complaint or summons with notice “shall be made within” 120 days after the commencement of the action (CPLR 306-b; Waggaman v Vernon, 123 AD3d 1110, 1110 [2nd Dept 2014]). Reznick commenced the instant action on January 5, 2021. By completing service on August 6, 2021, Reznick did not effectuate service on defendant Abreu within the 120 days as required by CPLR 306-b. Consequently, Reznick's motion for leave to enter a default judgment against Abreu upon his failure to answer the complaint is denied (Id.).

CONCLUSION

The motion by plaintiff Russell I. Reznick for an order pursuant to CPLR 3215 granting a default judgment against the defendant Jhonatan Abreu for failure to appear or respond to the summons and verified complaint is denied.

The foregoing constitutes the decision and order of this Court.

Francois A. Rivera, J.