Recitation, as Required by Cplr 2219 (A), of the Papers Considered on the Review of this Motion for Summary Judgment.Papers NumberedNotice of Motion and Annexed Affidavits 1DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION IS AS FOLLOWS:Plaintiff, 1690 President Street LLC (1690 President), commenced this action on March 8, 2016 against Vilma Samuels (Samuels), doing business as Nova Enterprise (Nova) for $16,700 stemming from an alleged breach of a lease, $3,340 in attorneys’ fees, eviction expenses of $2,933, interest, costs and disbursements.1690 President now moves to enter default judgment against Samuels pursuant to CPLR 3215, alleging that Samuels has failed to answer the complaint. This Court notes 1690 President filed this motion two and one-half years after the action was commenced, and more than one and one-half years beyond the statutory period to do so. Plaintiff’s counsel acknowledges the motion was filed late “because the firm realized that the amount demanded in Plaintiff’s second cause of action did not match the sum of invoices related to eviction expenses counsel had in their file.”Pursuant to CPLR 3215 (a), when “a defendant has failed to appear, plead or proceed to trial on 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” (CPLR 3215 [a]). “If the plaintiff’s claim is for a sum certain or for a sum which computation can be made certain, application may be made to the clerk within one year after the default” (Id.). If the plaintiff fails to seek judgment within one year of default, “the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own motion, unless sufficient cause is shown why the complaint should not be dismissed” (CPLR 3215 [c]; see also Perricone v. City of New York, 62 NY2d 661, 464 NE2d 980 [1984]).1690 President asserts it filed this motion late due to law office failure caused by “its lengthy delay in obtaining the bills for the legal expenses and the lack of knowledge of the office staff.” The Court does not find Plaintiff’s counsel’s law office excuse reasonable or acceptable for its failure to move the court for a default judgement more than one and one-half years after the statutory deadline and two and one-half years after Defendant defaulted in answering. Moreover, Plaintiff’s assertion of law office failure was not supported by “a detailed and credible explanation of the default” (People’s United Bank v. Latini Tuxedo Mgt., LLC, 95 AD3d 1285, 1286, 944 NYS2d 909, 909 [2d Dept 2012]). Its excuses of law office failure are conclusory and unsubstantiated, which do not rise to the level of a reasonable excuse (Piton v. Cribb, 38 AD3d 741, 742, 832 NYS2d 274, 274 [2d Dept 2007]). The determination of what constitutes a reasonable excuse is within the sound discretion of the court (Mazzola v. Vill. Hous. Assocs., LLC, 164 AD3d 668, 669, 83 NYS3d 127, 128 [2d Dept 2018]), and Plaintiff’s excuse is unreasonable.Additionally, Plaintiff’s counsel could have requested an extension to file the default judgment but failed to do so (Young Su Hwangbo v. Nastro, 153 AD3d 963, 965, 60 NYS3d 412, 414 [2d Dept 2017]).The party seeking a default judgment pursuant to CPLR 3215 based upon a failure to answer the complaint must prove its prima facie case; accordingly, the movant must submit (1) proof of service of the summons and complaint; (2) proof of the facts constituting their claim; and (3) proof of the opposing party’s default in answering or appearing (Matone v. Sycamore Realty Corp., 50 AD3d 978, 858 NYS2d 202 [2d Dept 2008]).In reviewing Plaintiff’s documentary submissions, specifically, Plaintiff’s process server’s affidavit of service; its affidavit of second mailing of the summons and complaint; its affidavit in support of default judgment and the summons and complaint, the Court could not unequivocally determine if Plaintiff’s proofs of service of the summons and complaint were sufficient to establish service of the summons and complaint upon the Defendant.“Service of process must be made in strict compliance with statutory ‘methods for effecting personal service upon a natural person’ pursuant to CPLR 308″ (Washington Mut. Bank v. Murphy, 127 AD3d 1167, 10 NYS3d 95 [2d Dept 2015] citing Estate of Waterman v. Jones, 46 AD3d 63, 65, 843 NYS2d 462 [2d Dept 2007] quoting Macchia v. Russo, 67 NY2d 592, 594, 496 NE2d 680 [1986]).CPLR 308 provides, in pertinent part, that personal service upon a natural person may be madeby delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by…mailing the summons to the person to be served at his or her last known residence (CPLR 308 [2]) (emphasis added).“Jurisdiction is not acquired pursuant to CPLR 308 (2) unless both the delivery and mailing requirements have been strictly complied with” (Gray-Joseph v. Shuhai Liu, 90 AD3d 988, 989, 934 NYS2d 868 [2d Dept 2011]; see also Daguerre, S.A.R.L. v. Rabizadeh, 112 AD3d 876, 878, 978 NYS2d 80 [2d Dept 2013]; Munoz v. Reyes, 40 AD3d 1059, 1059, 836 NYS2d 698 [2d Dept 2007]; Ludmer v. Hasan, 33 AD3d 594, 594, 821 NYS2d 661 [2d Dept 2006]). It “is a two-step form of service in which a delivery and mailing are both essential” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:3, Washington Mut. Bank v. Murphy, supra).Plaintiff’s affidavit of service and mailing poses questions for the Court whether CPLR 308(2) was strictly adhered to as Plaintiff process service avers personal service upon “Jane” Samuels on June 21, 2016 at an address, 879 Lenox Road, Brooklyn 11203 #C5, NY, which is not noted or referred to anywhere in Plaintiff’s papers as an address associated with Defendant and with a mailing of the summons and complaint on June 28, 2016 to a “last known residence,” which address is not listed on the affidavit of service. Also, the Court notes the summons and complaint fails to state the address of the subject lease and fails to state Defendant’s home address or last known residence, upon information and belief. Thus, it is questionable whether Plaintiff properly effectuated service upon Defendant pursuant to CPLR 308 (2) by personally serving a substitute person at Defendant’s actual place of business, dwelling place or usual place of abode and the process server not averring to where the summons was actually mailed to comply with mailing to the Defendant’s last known place of business or residence pursuant to CPLR 308 (2).Also, Plaintiff alleges it mailed a second summons and complaint to Defendant at 323 Utica Avenue, Brooklyn, NewYork on July 19, 2016, which was sworn to more than two years later, on August 23, 2018, posing further questions of proper service pursuant to CPLR 308 (2). The second mailing of the service and complaint cannot cure any defects in the first mailing of the summons and complaint to Plaintiff’s last known place of business or residence since the mailing must be effectuated within 20 days of personal service alleged effectuated on June 21, 2016.Based upon Plaintiff’s failure to provide a reasonable excuse for not timely moving the Court for a default judgment more than one and one-half years after the default and the Plaintiff’s failure to submit sufficient documentary evidence demonstrating unequivocal proof of service of the summons and complaint upon Defendant, Plaintiff’s motion for default judgment is denied.Accordingly, it isORDERED, that Plaintiff’s motion is denied.It is FURTHER ORDERED, that this action is dismissed.This constitutes the Decision and Order of the Court.Dated: January 24, 2019
