SAFENET SECURITY v. LLC (2026)

The following papers, numbered 1, were read and considered in connection with Plaintiff's Notice of Motion (Motion Seq. No. 1) for an Order pursuant to Civil Practice Law and Rules § 3215(a) directing the Clerk to enter a default judgment in favor of Plaintiff and against Defendant for the sum certain amount of $22,317.09, plus costs and distributions, with pre-judgment interest thereon and for such other and further relief as this Court deems just and proper:

PAPERS NUMBERED

Notice of Motion (Motion Seq. No. 1)/Affirmation of Barry Gasthalter/

Affirmation of Brian K. Condon, Esq./Exhibit A1

PROCEDURAL HISTORY

Plaintiff commenced the instant breach of contract action by filing of a Summons and

Verified Complaint on April 1, 2026, based upon Defendant's failure to make payments for alarm services as per an agreement between the parties. See NYSCEF Doc. No 1. According to the moving papers, Defendant was served with the Summons and Verified Complaint on April 6, 2026, pursuant to Civil Practice Law and Rules § 308(4) by nail and mail service at 3 Old Schoolhouse Road, New City, New York 10956. See NYSCEF Doc. No. 2. Defendant has never appeared, filed an answer or sought an extension for time to serve an answer.

Plaintiff filed the instant Notice of Motion, seeking default judgment on June 29, 2026. The instant motion was served on Defendant on June 30, 2026, via first class mail. See NYSCEF Doc. No. 9. Despite service of process, Defendant failed to oppose the motion.

BACKGROUND

Plaintiff alleges that, in or about November 2024, Plaintiff entered into an agreement with Defendant in which it agreed to provide alarm services including "installation and quarterly monitoring." See NYSCEF Doc. No. 4, ¶¶ 3-4. According to the Affirmation of Barry Gasthalter, Plaintiff's "authorized representative," the Plaintiff performed services pursuant to the parties' agreement and tendered invoices, without objection, to Defendant which reflected the services performed and amount due. See NYSCEF Doc. No. 4., ¶¶ 4-6. Further, Gasthalter contends that the monies owed were demanded from Defendant and the Defendant refused to pay the outstanding balance. See NYSCEF Doc. No. 4, ¶ 7. Plaintiff alleges that the total amount due owed is

$22,317.09. See NYSCEF Doc. No. 4, ¶ 8.

ANALYSIS

In order to enter a default judgment pursuant to Civil Practice Law and Rules § 3215, upon a defendant's failure to appear, a plaintiff must submit the "requisite proof" which includes affidavits setting forth the basis of the claim and the facts and proof of the default, that an additional mailing has been made, an affidavit of military investigation, the pleadings, and an affidavit of service. See Civil Practice Law and Rules § 3215(f); See also Rosenzweig v Gubner, 194 AD3d 1086 [2d Dept 2021]; Goode v Bespoke Motor Group, LLC, 248 AD3d 1099 [2d Dept 2026]. "Given that in default proceedings the defendant has failed to appear, and the plaintiff does not have the benefit of discovery, the affidavit or verified complaint need only allege enough facts to enable a court to determine that a viable cause of action exists." Woodson v Mendon Leasing Corp, 100 NY2d 62, 70-71 [2003]. "Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney." Civil Practice Law and Rules § 3215(f); See also Woodson v. Mendon Leasing Corp., 100 NY2d at 70.

In this action, counsel filed an attorney affirmation along with an Affirmation of Barry Gasthalter - an "authorized representative" - and a copy of an affidavit of service purporting to demonstrate compliance with Civil Practice Law and Rules § 3215(g). The affidavit of service filed by Plaintiff indicates that a copy of the "Summons" was mailed to Defendant via United States Postal Service on June 26, 2026.

Breach of Contract Claim

The documentation setting forth the basis of Plaintiff's First Cause of Action is insufficient. "The essential elements of a cause of action to recover damages for breach of contract are 'the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach.' " Cruz v Cruz, 213 AD3d 805, 807 [2d Dept 2023] quoting Klein v Signature Bank, Inc., 204 AD3d 892, 895 [ 2d Dept2022].

Here, the Gasthalter Affirmation is conclusory and vague as to the elements of a breach of contract and also does not define the affiant's role with any specificity demonstrating that he has personal knowledge of the facts. Specifically, the Gasthalter Affirmation provides no details as to the type of contract the parties entered into or the terms of the agreement including, among other things, the specific services to be provided or the time period or term of the agreement. In addition, the Gasthalter Affirmation provides no explanation as to where services were to be provided, when services were to be provided, the person representing the Defendant who entered into the agreement with Plaintiff for the services, the consequences of any default in payment, and the Plaintiff's rights and remedies if the Defendant defaulted. The Gasthalter Affirmation is wholly insufficient and cannot be the basis for the granting of a default judgment because it does not allow this Court to make any determination as to the essential elements of a breach of contract cause of action. See c.f. Pemberton v Montoya, 216 AD3d 988, 990-991 [2d Dept 2023]; Mountain Valley Indemnity v Cabrera, 241 AD3d 541, 543 [2d Dept 2025]. Based upon the foregoing, default judgment as to the First Cause of Action is denied.

Account Stated Claim

The Court finds that the documentation setting forth the basis of Plaintiff's Second Cause of Action is also insufficient. "An account stated is an agreement between parties as to an account and the correctness of account items and a specific balance due on them." White Plains Cleaning Services, Inc v 901 Properties, Inc., 94 AD3d 1108, 1109 [2d Dept 2012]. This agreement is independent of the original obligation. See Citibank [S.D.] v Cutler, 112 AD3d 573, 573-574 [2d Dept 2013]. "A cause of action for an account stated has been described as 'an alternative theory of liability to recover the same damages allegedly sustained as a result of the breach of contract.' " Episcopal Health Services, Inc. v Pom Recoveries, Inc., 139 AD3d 917, 919 [2d Dept 2016] quoting A Montilli Plumbing & Heating Corp. v Valentino, 90 AD3d 961, 962 [2d Dept 2011]. "[T]he very meaning of an account stated is that the parties have come together and agreed upon the balance of indebtedness so that an action to recover the balance as upon an implied promise of payment may thenceforth be maintained." Interman Indis. Products, Ltd. v R.S.M. Electron Power, Inc., 37 NY2d 151, 153-154 [1975]. "An essential element of an account stated is that the parties came to an agreement with respect to the amount due." Id. A party's silence or failure to object to an account stated cannot be interpreted as an agreement that the account is correct but upon consideration of the facts surrounding a particular transaction the absence of an objection within a reasonable time may result in an implied account stated. See id.

Here, Plaintiff has failed to demonstrate that the parties came to an agreement as to the amount due. Plaintiff failed to provide any documentation that the account statements sent to Defendants were ignored or disputed. The Verified Complaint and the Gasthalter Affidavit do not provide the dates when the alleged account statements were sent to the Defendant, where the statements were sent, and to whose attention. Further, no copies of the account statements -- which are alleged to have been sent to the Defendant -- have been included in the instant application. Based upon the foregoing, the default judgment as to the Second Cause of Action is denied.

Proof of Defendant's Default

In addition, notwithstanding the the lack of proof in support of the Plaintiff's application for default judgment, problems abound in the proof submitted by the Plaintiff in its attempt to demonstrate service and a subsequent default. Defendant, as noted by Plaintiff in the Verified Complaint, is a New York limited liability corporation and its place of business is 3 Old Schoolhouse Road, New City, New York. It is axiomatic that it is not a "natural person" for service purposes. See NYSCEF Doc. No. 1, ¶ 2.

A limited liability corporation can be served personally pursuant to Civil Practice Law and Rules § 311-a[a] by service on "(i) any member of the limited liability company ,(ii) any manager of the limited liability company , (iii) to any other agent authorized by appointment to receive process, or (iv) to any other person designated by the limited liability company to receive process, in the manner provided by law for service of a summons as if such as a defendant." In addition, a limited liability corporation may be served pursuant to Article 3 of the limited liability company law. See Civil Practice Law and Rules § 311-a[a]. The Court notes that the Plaintiff never filed an affidavit of service indicating that the Defendant, as a limited liability corporation, was served process pursuant to the Limited Liability Law by service on the New York State Office of the Secretary of State (see Limited Liability Law § 303) or on any manager, member or agent of Defendant pursuant to Civil Practice Law and Rules § 311-a[a].

Based upon the affidavit of service filed in this matter, the Plaintiff has failed to satisfy the requirement pursuant to Civil Practice Law and Rules § 3215(a) of proof of default in that Plaintiff has not demonstrated that Defendant, as a limited liability company, has been properly served. The only exhibit concerning service annexed to Plaintiff's application as proof of default as to the Defendant is the notice required pursuant to § 3215(g).

As to service of the Summons and Complaint at the commencement of this action, the Plaintiff filed an Affidavit of Service demonstrating service of process on the Defendant pursuant to Civil Practice Law and Rules § 308(4), at 3 Old Schoolhouse Road, New City, a service provision available for natural persons, not limited liability corporations. The inapplicability of § 308(4) to the service of Defendant, a limited liability corporation, is evidenced by the language included in the form affidavit of service used by Plaintiff's process server.

Specifically, the affidavit of service indicates that the company, not any specific person associated with the company, was served when the Summons and Complaint were affixed to the door, which is the "usual place of abode within the state," language that clearly is applicable to a person, not a company. See NYSCEF Doc. No. 2. In addition, the process server attests that after talking to "No one," she confirmed that the Defendant corporation did not "live" or "work" at the aforementioned address and as a result of that confirmation, she mailed the documents for service to Defendant via the United States Postal Service. See NYSCEF Doc. No. 2.

Even if Civil Practice Law and Rules § 308(4) was applicable to the Defendant, the affidavit of service filed by Plaintiff is also deficient based upon the paragraph addressing service by mail. Plaintiff has not provided or filed a separate or additional affidavit of service as to the mailing of the Summons and Complaint with the instant application on NYSCEF. As to the prong of Civil Practice Law and Rules § 308(4) regarding service by mail, the statute requires that the "person" [defendant] was served "at his or her actual place of business" or that the mailing was "effected within twenty days" of the affixing to the door.

The affidavit of service provided by Plaintiff does not conclusively demonstrate a mailing. Instead, it contains the numerical tracking portion of a United States Postal Service certified mail label, with no other identifying information as to the mailing (including the date of mailing, address or recipient). Further, the aforementioned numerical portion or the balance of the mailing receipt is not included in any other document. Instead, the numerical tracking receipt is superimposed on top of the process server's affidavit of service, as if it was not part of the original affidavit of service. See NYSCEF Doc. No. 2.

Based upon the deficiencies in the affidavit of service the Court cannot determine if the proof of service filed in NYSCEF by Plaintiff was within twenty (20) days of the affixing or the mailing of the Summons and Complaint -- which is an issue since the date of each is the controlling factor as to the time in which the Defendant had to appear in this action. Further, pursuant to Civil Practice Law and Rules § 308(4), service is only complete ten (10) days after the filing of and affidavit regarding either the affixing or mailing, whichever is later. Therefore, since the Court does not know the date of the mailing, it is unclear when (or if) service was completed on Defendant and if in fact there was actually a default in answering or appearing. Therefore, Plaintiff is also not entitled to a default judgment since there has not been strict compliance with the service procedures relating to a New York State Limited Liability Corporation. See c.f. Global Liberty Insurance Co. v Surgery Center of Oradell, LLC, 153 AD3d 606 [2d Dept 2017].

In arriving at this decision the Court has reviewed, evaluated, and considered all of the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Plaintiff's Motion (Motion Seq. No. 1) is denied in its entirety without prejudice; and it is further

ORDERED that Plaintiff is directed to file a further application consistent with the aforementioned Decision or appear before the undersigned on October 16, 2026, at 9:30 a.m. for a status conference; and it is further

ORDERED that Plaintiff serve Defendant with the Decision and Order via United States Postal Service within seven (7) days of the date hereof.

The foregoing constitutes the Decision and Order of this Court on Motion Seq. No. 1.

Dated: September 15, 2026

New City, New York

Hon. John P. Collins, Jr., J.S.C.

John P. Collins, Jr., J.