Ilxom Ermanov, Plaintiff, v. DANIEL ANTWI BOASIAKO KG CARGO INC (2026)

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion, filed on June 9, 2026, under motion sequence number five, by Ilxom Ermanov (hereinafter the plaintiff) for an order pursuant to CPLR 3215 (a) and CPLR 3215 (b) directing default judgment against Daniel Antwi-Boasiko (hereinafter the defendant). The motion is unopposed.

Notice of motion

Affirmation in support

Exhibits A-C

Affirmation of good faith

BACKGROUND

On January 14, 2025, the plaintiff commenced the instant action arising out of a motor vehicle accident, seeking damages for personal injuries, by filing a summons and complaint (hereinafter "the commencement papers") with the Kings County Clerk's office (hereinafter "the KCCO"). The complaint alleges thirty-nine allegations of facts in support of one cause of action for negligence.

The complaint alleges the following salient facts. The plaintiff is resident of the county of Kings, in the State of New York. The defendant Daniel Antwi-Boasiako is a resident of the county of Delaware, in the State of Ohio.

On March 4, 2024, at approximately 10:54 a.m., the plaintiff was in a 2016 Freightliner motor vehicle bearing a certain vehicle identification number. The motor vehicle was parked at the Pilot Travel Center located at a certain address in the State of Ohio. At that date, time, and place a 2020 Freightliner motor vehicle bearing a certain vehicle identification number, owned by Daniel Antwi-Boasiako, and operated by defendant Kalysbek Zhunusov, came into contact with the motor vehicle containing the plaintiff (hereinafter the subject accident). The subject accident was caused by the negligence of the defendants in the ownership, operation, maintenance, and/or control of the adverse vehicle.

LAW AND APPLICATION

In the instant motion, the plaintiff seeks leave to enter a default judgment against the defendant pursuant to CPLR 3215.

CPLR 3215 provides, in pertinent part, as follows:

"(a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him." "(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due . . . by affidavit made by the party . . . 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."

"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], citing CPLR 3215 [f]). "CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim are to be set forth in an affidavit 'made by the party' (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2d Dept 2009], quoting CPLR 3215 [f]).

Here, the plaintiff attempted to serve the commencement papers on the defendant pursuant to Vehicle and Traffic Law § 253, which sets forth the requirements of proper service of process of the summons for claims related to motor vehicle accidents where the defendant is an out-of-state resident. In this case, the defendant is a non-resident, as he resides in the State of Ohio. Therefore, service must comply with Vehicle and Traffic Law § 253 (2).

Vehicle and Traffic Law § 253 (2) provides the following:

"A summons in an action described in this section may issue in any court in the state having jurisdiction of the subject matter and be served as hereinafter provided. Service of such summons shall be made by mailing a copy thereof to the secretary of state at his office in the city of Albany, or by personally delivering a copy thereof to one of his regularly established offices, with a fee of ten dollars, and such service shall be sufficient service upon such non-resident provided that notice of such service and a copy of the summons and complaint are forthwith sent by or on behalf of the plaintiff to the defendant by certified mail or registered mail with return receipt requested. The plaintiff shall file with the clerk of the court in which the action is pending, or with the judge or justice of such court in case there be no clerk, an affidavit of compliance herewith, a copy of the summons and complaint, and either a return receipt purporting to be signed by the defendant or a person qualified to receive his certified mail or registered mail, in accordance with the rules and customs of the post-office department"

Vehicle and Traffic Law § 253 sets forth that service through the Secretary of State may be done by mailing a copy or by personally delivering a copy of the summons to the Secretary of State and such service may be deemed sufficient provided that (1) a copy of the affidavit of service via Secretary of State together with the summons are sent by or on behalf of the plaintiff to the defendant via certified mail or registered mail with return receipt requested, and (2) plaintiff files an affidavit of compliance, a copy of summons, and a copy of the return receipt purporting to be signed by the defendant or person qualified to receive his certified mail or registered mail.

In support of the motion, the plaintiff submitted, among other things, an affidavit of service pursuant to Vehicle and Traffic Law § 253 that states that on January 21, 2025, at 1:20 p.m., the plaintiff served the commencement papers on the defendant via the Secretary of State. The same affidavit of service also indicates that the defendant was mailed a copy of the summons and complaint by certified mail and return receipt requested. The above-mentioned affidavit of service is the only proof of service of the commencement papers on the defendant.

Pursuant to Vehicle and Traffic Law § 253, a copy of the affidavit of service via Secretary of State, together with the summons, are to be sent to the defendant by certified mail or registered mail with return receipt requested.

Here, the Plaintiff's affidavit of service dated January 21, 2025 alone does not comply with the requirements set forth in Vehicle and Traffic Law § 253. There is no proof that a copy of the affidavit of service via Secretary of State together with the summons were sent by or on behalf of the plaintiff to the defendant via certified mail or registered mail with return receipt requested. There is also no proof that the plaintiff filed an affidavit of compliance, a copy of summons, and a copy of the return receipt purporting to be signed by the defendant or a person qualified to receive his certified mail or register mail.

Consequently, the Court did not obtain personal jurisdiction over the defendant Daniel Antwi-Boasiako. Therefore, the motion seeking a default judgment against this defendant pursuant to CPLR 3215 is denied without prejudice.

CONCLUSION

The motion by plaintiff Ilxom Ermanov Dawson, under motion sequence five, for an order pursuant to CPLR 3215 awarding a default judgment against defendant Daniel Antwi-Boasiako and setting forth this matter down for an inquest is denied.

The foregoing constitutes the decision and order of this Court.

ENTER

J.S.C.

Francois A. Rivera, J.