HAMMER PROMOTIONS LLC v. CERTIFIED CELEBRITY BOOKINGS INC (2022)

Plaintiff, Hammer Promotions LLC, moves for default judgment under CPLR 3215 against defendants Certified Celebrity Bookings Inc. (CCB) and Mike Gee. Hammer Promotions’ motion papers do not establish that the defendants defaulted following valid service.

With respect to defendant CCB, plaintiff's affidavit of service reflects that it served CCB through the Secretary of State on May 6, 2022. (See NYSCEF No. 3.) CCB had 30 days from May 6 to appear and respond. (CPLR 320 [a].) Because the 30th day of that period was a Sunday, CCB's deadline to appear or respond was June 6, 2022. (General Construction Law § 25-a.) But Hammer Promotions moved for default judgment on June 2, 2022—before CCB could have defaulted.

Hammer Promotions did also attempt to serve CCB through personal delivery on May 4, 2022. (See NYSCEF No. 13 at 2.) If that service attempt succeeded, CPLR 320 (a) would afford CCB only 20 days to appear or respond, i.e., until May 24. But Hammer Promotions has not established that the May 4 service was valid. Personal service on a business corporation is governed by CPLR 311 (a). Under that provision, delivery of the initiating papers may be made “to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service.” The May 4 affidavit of service on CCB reflects that the papers were delivered to a woman named Anita Iskenderian. (NYSCEF No. 13 at 2.) But the affidavit does not state who Anita Iskenderian is, what her relationship is to CCB, or how she qualifies as someone to whom service may be made under CPLR 311. Absent proof on those points, Hammer Promotions has not established that CCB was validly served on May 4 under CPLR 311, such that CCB would have been in default when Hammer Promotions moved for default judgment.

With respect to defendant Mike Gee, Hammer Promotions served him by leave-and-mail service under CPLR 308 (2). (See NYSCEF No. 13 at 1.) When service is made under CPLR 308 (2), a defendant has 30 days to respond from the completion of service. (CPLR 320 [a].) Service is complete 10 days after the filing of the affidavit of service. (CPLR 308 [2].) Hammer Promotions filed the affidavit of service on May 17, 2022. (NYSCEF No. 13). Gee's deadline to appear and respond was June 27, 2022—40 days from May 17 plus one additional day to account for the deadline falling on a Sunday—weeks after Hammer Promotions moved for default judgment.¹

It is true that neither CCB nor Gee have yet appeared in this action or sought an extension of time to appear and respond. Both defendants are thus now in default. But neither defendant had defaulted as of the time the current motion was filed. To grant a default judgment now would require this court, in effect, to disregard that defect in Hammer Promotions’ motion papers. But this court may do so only “if a substantial right of a party is not prejudiced.” (CPLR 2001; cf. Grskovic v Holmes, 111 AD3d 234, 242-243 [2d Dept 2013] [distinguishing “between the ‘correction’ of mistakes and the ‘disregarding’ of mistakes” under CPLR 2001].) Granting a default-judgment motion made prior to the occurrence of a default by either defendant would prejudice defendants’ substantial rights.

Accordingly, it is

ORDERED that Hammer Promotions’ motion for default judgment under CPLR 3215 is denied without prejudice.

FOOTNOTES

1.   Indeed, even had service been complete upon the follow-up mailing, carried out on May 13, 2022 (NYSCEF No. 13 at 1), Gee's deadline to appear and respond would still have been June 13, 2022, not June 2, 2022.

Gerald Lebovits, J.