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, Renaissance Equity Hldgs B LLC (Renaissance), commenced this action on July 19, 2018 against Ciro T. Tecoti, Sr (Tecoti), for breach of contract stemming from an alleged breach of a lease in the amount of $12,160.86. Plaintiff avers Defendant breached his lease in May 2017, leaving a balance of $1,228.86, did not pay the monthly rent of $1,366.50 from June to October 2017 and remained in possession from November 2017 to January 2018 of the premises 1404 New York Avenue Brooklyn NY 11210. Plaintiff offset this alleged breach with Defendant’s $1,285 security deposit.Renaissance now moves to enter default judgment against Tecoti pursuant to Civil Practice Law and Rules §3215, alleging that Samuels has failed to answer the summons and complaint alleged served upon Tecoti pursuant to CPLR 308 (4) on August 23, 2018.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” within one year of defendant’s default (CPLR 3215 [a]).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 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 (4) was strictly adhered to as Plaintiff’s process service avers it annexed the summons and complaint to the door of 1916 Kings Highway Apt 3, Brooklyn, NY 1229 on August 22, 2018 at 7:45pm and August 23, 2018 at 10:09am and 3:34pm.First and foremost, Plaintiff alleges it served Defendant at 1916 Kings Highway Apt 3, which was Defendant’s address prior to signing the lease with Plaintiff on October 15, 2011. This is verified in Plaintiff’s Exhibit 3, a rental lease for the subject premises signed by the parties on October 6, 2011. Plaintiff did not provide the Court with any explanation as to why it attempted service in 2018 on Defendant at an address Defendant resided at in 2011. Plaintiff failed to determine Defendant’s current address after Defendant vacated the subject premises in January 2018.Second, Plaintiff’s process server’s affidavit indicates the process server attempted to serve Defendant on August 22, 2018 at 7:45pm. The process server next attempted to serve Defendant twice on the next day (August 23, 2018 at 10:09am and 3:34pm) when Defendant could reasonably be expected to be at his place of employment, and after the final attempt, affixed the summons and complaint to the door.Plaintiff’s process server’s attempt to serve Defendant at his prior home address nearly seven years later, along with affixing the summons and complaint to the door after three consecutive unreasonable attempts at service does not satisfy the due diligence requirements of CPLR 308 (see e.g. Serrano v. Pape, 188 AD2d 647, 591 NYS2d 516 [2d Dept 1992]; see also Leviton v. Unger, 56 AD3d 731, 868 NYS2d 126 (2d Dept 2008]).Thus, it is questionable whether Plaintiff properly effectuated service upon Defendant pursuant to CPLR 308. This Court finds Plaintiff has failed to submit sufficient documentary evidence demonstrating unequivocal proof of service of the summons and complaint upon Defendant.Accordingly, it isORDERED, that Plaintiff’s motion is denied.This constitutes the Decision and Order of the Court.Dated: June 27, 2019
