DECISION The Plaintiff commenced this action against the Defendant seeking alleged damages in the amount of $23,066.44 plus interest from September 1, 2013, for unpaid rent and use and occupancy for the premises at 4639-41 White Plains Road, Bronx NY 10470, plus costs and disbursements. The Plaintiff moves, unopposed, for an order pursuant to CPLR §3215 awarding a default judgment in its favor.A review of the procedural history of this case indicates that the Plaintiff has already moved for the same relief requested herein and a decision was issued on June 13, 2018 which denied the Plaintiff’s motion. Although not denominated as such, the instant motion is a motion to renew based upon information not provided on the prior motion. While the Plaintiff has failed to timely submit the instant motion to renew or to establish a reasonable excuse why the new information provided in this motion was not included in the prior motion, the court in its discretion shall grant leave to renew and re-evaluate the motion on its merits.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 (1st Dept. 2012); Atlantic Cas. Ins. Co. v. RJNJ Servs. Inc., 89 A.D.3d 649 (2d Dept. 2011).In support of its motion, the Plaintiff submits an affirmation of counsel, an affidavit in support of the motion, city register recording and deed, copy of lease and ledger, copy of summons and endorsed complaint, the affidavit of service of the summons and complaint, the affirmation of additional mailing, a copy of a notice of motion and affirmation in support of the prior motion seeking the same relief, the decision and order of this court which denied the prior motion, two letters on counsel’s letterhead to the U.S. Postmaster which do not indicate a response from the Postmaster, a letter on counsel’s letterhead with an alleged post office stamp with the date redacted indicating that Defendant “resides at the address” listed on the letter, another letter on counsel’s letterhead with an alleged post office stamp dated Sept. 11, 2015 indicating that Defendant “receives mail at the address” listed on the letter, and an affirmation of military investigation.The affidavit of service alleges that on July 6, 2017, the Defendant was served by affixing to the door at Defendant’s “dwelling place or usual place of abode” at 2026 Strang Avenue, Floor 1, in Bronx County, a copy of the summons and endorsed complaint, with a mailing to the same address that followed on July 13, 2017.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). Conversely, 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 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 addition, an affidavit of service is not entitled to the presumption of proper service when a significant amount of time has elapsed from the date that the action accrued and the commencement of the action.It is alleged that the cause of action accrued when the Defendant vacated the premises on September 5, 2014. Service of the summons and endorsed complaint is alleged to have taken place on July 6 and 13 of 2017. Given the three 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).Here, the Plaintiff has provided the two letters previously mentioned which are alleged to be executed and stamped by the U.S. Post Office as proof of the Defendant’s dwelling place or usual place of abode.The court finds that the Plaintiff’s submissions are insufficient to establish that the Defendant resided at the address listed on the affidavit of service during the period when the Defendant was allegedly served. 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 Plaintiff failed to establish the necessary foundation to admit the letters to the Postmaster, which contain hearsay information provided from a third party. The letters neither indicate the name of the person providing the information, nor do they contain a signature. Further, an affidavit was not 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 of the record. Moreover, the alleged post office stamp on one letter clearly indicates an irrelevant time period and the stamped date on the other letter is redacted.A motion for a default judgment is akin to a motion for summary judgment where a Plaintiff is seeking to “expeditiously adjudicate the merits of a controversy without a formal trial” and to summarily obtain an order of judgment from the court. 5 Am Jur Trials 105 _1. Summary entry of a judgment presupposes proof by competence evidence set forth in affidavits and other authenticated documents. Id. at_2. Further, documents proffered should be appropriately certified or their authenticity established in a manner that would permit them to be received in evidence as an exhibit at a trial for the purpose used on the motion for judgment. Id. at _10.When a default judgment is entered against a Defendant, their rights are severely prejudiced. Thus, it is imperative that the court scrutinize the alleged address at which service is alleged to have taken place and ascertain whether the address is a proper address for service. Documents submitted to establish the propriety of the alleged address must be authenticated in order to guarantee that the notice requirements are met. Although it may be argued that the court may take judicial notice of an official document, in this case, where the alleged official document bears no signature, no sworn statement, no information to assess the accuracy of the document, and is wholly deficient in its form, the court rejects that it is an official U.S. postal document.Given that the Plaintiff did not establish that the address on the affidavit of service is a proper address for service, the Plaintiff has not established that the Defendant was properly served with notice of the instant case and that the court has obtained jurisdiction over the Defendant. As such, the court finds that the Plaintiff has failed to meet its burden of proof for a default judgment. Based on the foregoing, the Plaintiff’s motion for a default judgment is denied. Inasmuch as this is the Plaintiff’s second bite at the apple, leave to renew shall not be granted. Furthermore, at trial or Inquest, if the Plaintiff is unable to establish with competent evidence that the address at which the Defendant was served was the Defendant’s dwelling place or usual place of abode, the instant case must be dismissed as the court has already determined in this Decision that the affidavit of service is insufficient to establish proper service.Dated: December 31, 2018
