Recitation of papers received on this motion noticed for July 26, 2018 and submitted on July 26, 2018:Papers NumberedMotion 1DECISION AND ORDER The Plaintiff commenced this action against the Defendant seeking alleged damages in the amount of: $5,651.70 plus interest from April 30, 2016, for unpaid use and occupancy of the subject premises at 3021 Briggs Avenue, Apartment 5B, Bronx, NY; $1,405.00 for legal fees incurred by the Plaintiff to recover possession of the subject premises and $1,650.00 for legal fees incurred by the Plaintiff in the instant proceeding.The Plaintiff now moves for an order granting renewal and reargument of this Court’s Decision and Order dated February 14, 2018, which denied the Plaintiff’s motion for a default judgment without prejudice to renew. The Court denied the default judgment motion for the failure to provide proof of proper service of process and the failure to provide an Affidavit of Military Investigation.The Plaintiff moves to renew and reargue “on the grounds that Court overlooked or misapprehended the facts and the law and due to the existence of new facts and documentation, inadvertently not offered on the prior motion, that would change the Court’s prior determination.” See Plaintiff’s Counsel’s Affirmation in Support.Pursuant to CPLR §2221, a motion to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion. A motion to reargue, shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion. A motion to reargue shall be made within 30 days after service of a copy of the order determining the prior motion and written notice of its entry.As an initial matter, on a motion to renew, the Plaintiff did not argue that there has been a change of the law and has failed to provide a reasonable justification for the failure to provide the new facts and documentation on the prior motion, except that it was “inadvertently not offered on the prior motion.” Thus, the Plaintiff has not met its burden to obtain renewal.On its motion to reargue, the Court rendered its Decision and Order on February 14, 2018 and mailed same to the parties immediately thereafter. Even if the Plaintiff received notice of the Decision and Order in late February, the Plaintiff has failed to move to reargue within the 30 days as provided by statute or to inform the Court when it received service of the Order. The motion was filed over four months after the Order was entered and served by the Court. Thus, the Plaintiff’s motion to reargue is untimely. Furthermore, the Plaintiff failed to establish that the Court erred because it overlooked or misapprehended matters of fact or law.To the extent that the Plaintiff is arguing that the Court erred in denying the motion on the basis that an Affidavit of Military Investigation was not included on the motion, the Court disagrees. The Plaintiff argues that the Affidavit is properly provided to the Clerk of the Court at the time that the Judge’s Order granting a Judgment is presented to the Clerk and that providing the Affidavit at the time of the motion would render the Affidavit stale at the time the Judgment is entered by the Clerk. Providing the Affidavit to the Clerk of the Court after the Court grants a Judgment is counter intuitive to the purpose of the Service Members Civil Relief Act, 50 USCA 3901 et seq. The purpose of the Service Members Civil Relief Act is to provide for the temporary suspension of judicial and administrative proceedings that may adversely affect service members in those instances where their current military assignment prevents them from participating in the proceedings. 50 USCA 3932 (b)(2)(B). Thus, not every soldier is entitled to the stay provisions of the statute by virtue of being in the military, and in any case, the soldier must establish that the soldier’s current assignment prevents participation in the proceeding.50 USCA 3931 provides that “[i]n any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit …” Given that the granting of a judgment against a Defendant has an adverse effect on the Defendant, the Court should not be granting a judgment against a Defendant unless and until there is an Affidavit of Military Investigation indicating whether the Defendant is in the U.S. Military. It is a waste of judicial resources for the Court to consider summary judgment or default motions or to engage in judicial proceedings without knowing the military status of a Defendant as any decision rendered by the Court may have to become vacated if a nonappearing Defendant-Soldier was not provided with the protections of the statute. Thus, contrary to the Plaintiff’s argument that the Affidavit is properly presented to the Clerk of the Court after the Court renders a Judgment, the Court finds this suggested procedure improper, as it is a waste of judicial resources to present the Affidavit at the late stage of entering a Judgment and the Court should not engage in any adverse proceedings or entertain summary judgment or default judgment motions until it is provided with the military status of a Defendant. To the extent that the Plaintiff argues that the practice in the Courts has been to require the presentment of the Affidavit of Military Investigation at the time that Judgment is entered, such practice is not the practice of this Court.The Plaintiff also argues that its prior motion should not have been denied because it presented a properly executed affidavit of service to establish that the Defendant was properly served. Although the Plaintiff included an Affidavit of Service of the Summons and Verified Complaint with its prior motion, the Plaintiff failed to indicate why the address listed on the Affidavit of Service was a proper address for service and this Court does not accept conclusory, self-serving statements that any random address is a Defendant’s “actual place of business, dwelling place or usual place of abode” pursuant to CPLR§308(4). Inasmuch as the Plaintiff failed to establish that the Court erred because it overlooked or misapprehended matters of fact or law, the Plaintiff did not meet its burden in establishing entitlement to reargument.Although the Plaintiff did not meet its burden for renewal or reargument, it is significant to note that the Court did not evaluate Plaintiff’s prior motion on the merits and denied the motion without prejudice to renew. As such, the Court grants the Plaintiff’s motion to renew and conducts a de novo review of its submission.Upon renewal, the Plaintiff’s motion for summary judgment is denied again for the reasons indicated below.CPLR §3215(a) provides, in pertinent part, that “[w]hen a defendant has failed to appear, plead or proceed to trial…, the plaintiff may seek a default judgment against him.” A party who moves for an entry of a default judgment pursuant to CPLR §3215 is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party’s default in answering or appearing.” See CPLR §3215(f); Nouveau El. Indus., Inc. v. Tracey Towers Hous. Co., 95 AD3d 616, 617 (1st Dept 2012); Atlantic Cas. Ins. Co. v. RJNJ Servs. Inc., 89 A.D.3d 649, 651 (2d Dept 2011).In support of its motion, the Plaintiff submits the Affirmation of Counsel, an Affidavit of Merit from Mr. Vito Manginelli, a member of the Plaintiff limited liability corporation, a copy of the Summons and Verified Complaint, a copy of the lease and lease renewals, a copy of an account ledger, copies of legal fee invoices, an Affidavit of Non-Military Service, a copy of a LexisNexis Accurint Search Results, copies of Post Office Address and Box Holder Information Requests, an Affidavit of Service of the instant motion, an Affidavit of Service of the Summons and Verified Complaint, as well as an Affirmation of Additional Mailing, seeking to establish that the Defendant has failed to answer or appear in this action despite service of process. See CPLR §3215(f).The Affidavit of Service of the Summons and Verified Complaint indicates that on May 3, 2017, the Defendant was served by substituted service by affixing to the door at 1201 Ogden Avenue Apt. 6I, in Bronx County, a copy of the Summons and Verified Complaint, with a mailing to the same address that followed within 20 days. The process server alleged that the address listed on the affidavit of service is the Defendant’s “dwelling place.”The Court is authorized to issue a default judgment upon a defaulting Defendant where it has been established that the Court has obtained jurisdiction over the party via proper service of process. CPLR §3215(a). The Plaintiff bears the burden of proving by a preponderance of the evidence that jurisdiction was obtained over the Defendant by proper service of process. Gottesman v. Friedman, 90 A.D.3d 608 (2d Dept. 2011); Frankel v. Schilling, 149 A.D.2d 657 (2nd Dept. 1989). Where proper service of process cannot be established, the Court may not issue a default judgment. Daniels v. King Chicken & Stuff, Inc., 35 AD3d 345 (2nd Dept. 2006); Widman v. Turner, 55 Misc.3d 131(A) (NY Sup App Term 2017).It is alleged that the Defendant ceased paying rent as of July 2015 and service is alleged to have been effected on May 3, 2017. Given the two year delay in commencing this action, the Court requires that a Plaintiff must provide the Court with evidence that the address at which a Defendant was served is a proper address for service in accordance with CPLR §308. See generally, Feinstein v. Bergner, 48 NY2d 234 (1979)(statute amended to discourage “sewer service” and ensure that defendants receive actual notice of the pendency of litigation.)It is well settled that a properly executed affidavit of a process server attesting to the service of process upon a Defendant constitutes prima facie evidence of proper service. Perskin v. Bassaragh, 73 AD3d (2nd Dept. 2010). The rebuttable presumption afforded to the affidavit of service is permissible only where the Plaintiff can establish that the address where the service was alleged is a Defendant’s “actual place of business, dwelling place or usual place of abode” pursuant to CPLR §308(2). Thus, an affidavit of service is not entitled to the presumption of proper service where the affidavit of service is defective on its face or the address alleged is not a valid legal address. Obrycki v. Ryp et al, 39 Misc3d 1220(A)(NY Sup Ct. Sullivan Co. 2014.)In the instance where there has been a delay in commencing an action, no contact between a Plaintiff and a Defendant, or a Plaintiff does not have first hand knowledge of the Defendant’s proper address for service, a Plaintiff must provide to the Court evidence establishing Defendant’s address, thereby also establishing that service at said address is proper and provided proper notice the action. Here, Plaintiff provides the Lexis Nexis Accurint Search Report to establish Defendant’s address in May 2017, which was not provided on the prior motion. The Report, however, is insufficient to establish that the Defendant resided at the address listed on the Affidavit of Service at the time of the alleged service of process.Certain documents accompanied with affidavits, which are submitted in support of a motion for judgment, may be deemed admissible where the requirements of the business record exception to the rule against hearsay under CPLR §4518 are met. See generally, Viviane Etinne Medical Care, PC as Assignee of Alem Cardenas v. County-Wide Ins. Co., 25 NY3d 498 (2015) (the Court of Appeals found that the affidavit of a person with first hand knowledge of the billing procedures, submitted with the record of the bill, was sufficient to meet the business records exception to the hearsay rule.)The Accurint Report is insufficient because it is not in admissible form and provides incomplete and redacted information. Further, the Report indicates the time periods up to May 2016. In addition, the Plaintiff failed to establish the necessary foundation to admit the Accurint Report, which contains hearsay information provided from a third party. The report does not provide nor was an affidavit submitted providing information to the Court as to how the author of the record obtained the information, whether it was the duty of the author to obtain and maintain the information in the regular course of its business, whether the information was obtained in its regular course of business, the time frame that the information was collected, the time frame that it is alleged a Defendant resided at the subject address or any information for the Court to assess the accuracy or authenticity of the record. Inasmuch as the Accurint Report, by itself, is insufficient to establish that the address alleged on the affidavit of service is a proper address for substituted service, the affidavit of service, which relies on information obtained from the Accurint Report, is insufficient to establish that Defendant was properly served with notice of the instant case.The Plaintiff also offers alleged copies of Post Office Address Request Forms which are not signed, sworn or certified by a Postal employee with first hand knowledge of the facts and as such also fail to meet the admissibility requirements. Even if the Court accepted the Post Office Forms as authentic and admissible, the Forms fail to establish the Defendant’s dwelling place on May 3, 2017 and the lack of return mail is a consideration but not determinative. Should the Plaintiff be able to establish proper service of process at Inquest, the Clerk of the Court is directed to disallow the costs and legal fees for two unsuccessful motions that should not be incurred by the Defendant.Inasmuch as the Plaintiff has failed to meet its burden of proof for a default judgment, the Plaintiff’s Motion for a Default Judgment is hereby DENIED.Dated: August 21, 2018
