DECISION AND ORDER Opinion On January 30, 2018, the Plaintiff commenced this action by the filing of the Summons and Complaint, seeking damages for the alleged failure of the Defendant to pay rent from October 2015 to December 2015. The service of the Summons and Complaint should have been completed by May 30, 2018, but was alleged to have been completed on January 4, 2019. The Plaintiff moves for an Order deeming the service of the Summons and Complaint timely and entering a default judgment against the Defendant in the amount of $2,704.32. Service of the Summons and Complaint CPLR §306-b requires that the Summons and the Complaint be served within 120 days of the filing of the Summons and Complaint. In the interest of justice or upon good cause shown, the Courts may grant an extension of time to serve the Summons and Complaint upon consideration of several factors: (1) the expiration of the statute of limitations, (2) the explanation given for the late service, (3) the promptness with which the Plaintiff sought judicial extension of the time to serve, (4) prejudice to the Defendant, (5) diligence in attempting service, and (6) principled and supported determinations as to what is just and equitable under all of the relevant facts and circumstances of a case. See generally, Hafkin v. North Shore University Hospital, 279 AD2d 86 (2nd Dept. 2000). In the instant case, the Plaintiff waited 16 months after it missed the deadline for service of the Summons and Complaint to move for a judicial extension. The Plaintiff has not shown reasonable diligence or provided a reasonable excuse for the delay in moving for an extension. Further, as explained below, the Plaintiff has failed to establish proper service of the Summons and Complaint. Based upon the facts presented, the Court denies the Plaintiff’s request to accept the late service of the Summons and Complaint. Default Judgment CPLR §3215(a) provides that when 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). The Court is authorized to grant a 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. The Plaintiff bears the heavy 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 (2nd 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 grant a judgment. Daniels v. King Chicken & Stuff, Inc. 35 A.D.3d. 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 the instance where 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 the proper address for the Defendant, thereby also establishing that service at said address is reasonable and provided reasonable notice of the action, thereby giving the Court jurisdiction over the Defendant. The instant cause of action accrued in December 2015 and the affidavit of service of the Summons and Complaint states that the Defendant was served on December 21, 2018 at 1806 First Avenue, #6F, New York, NY 10128, by affixing the Summons and Complaint to the door, followed by a first class mailing to the same address on January 4, 2019. The Plaintiff has not presented any evidence that the address where the process server served the Defendant was a proper address for service. The Plaintiff merely alleged that it caused an investigation to take place and relayed hearsay information to the Court as to the address obtained as a result of the search. In order to obtain a default judgment, the Plaintiff must provide the Court with evidence that the address at which the Defendant was served is a proper address for service in accordance with the CPLR. See generally, Feinstein v. Bergner, 48 N.Y.2d 234 (1979) (Statute amended to discourage “sewer service” and ensure that defendant receive actual notice of the pendency of litigation). Here, the Plaintiff has failed to establish that the address where the service was alleged to have taken place is a proper address for service. As such, the Plaintiff has not established that the Court has obtained jurisdiction over the Defendant and therefore has failed to meet its burden for a default judgment. It is significant to note that the Civil Courts of the City of New York entered 41,671; 33,771; and 53,099 default judgments in 2016, 2017, and 2018 respectively. In the nearly three years that this Judge has presided over Civil Court cases, this Judge has ruled on hundreds of motions to vacate a default judgment and in NONE of those cases, did the Court inquire, nor did the Plaintiff provide evidence that the Defendant’s address was a proper address for service prior to granting the default judgment. The Plaintiff only presented the self-serving affidavit of the process server, who stays employed by successfully serving Defendants. Judges often rationalize that a Defendant can always move to vacate their default when service is improper. This rationale is prejudicial to the Defendant and wrongly places the burden on the Defendant who now has to move to vacate a default judgment and offer sufficient details before he can even get a traverse, when the default judgment should not have been granted in the first place. Oftentimes, a Defendant cannot afford to take time off from work to attend Court; may live in a different state and cannot afford to come to New York for numerous appearances to defend an action; or are simply lost, overwhelmed, ignorant, or intimidated with the Courts. Their inability to afford to take time off from work or to navigate through the bureaucratic process is unfairly prohibitive and denies access to justice to many Defendants. There has been lot of discussion in the Courts and articles published about the lack of access to justice and the inordinate number of default judgments entered by the Civil Courts of the City of New York. Yet, a majority of the default judgments are wrongly granted by Judges and Inquest Clerks when they fail to require the Plaintiff to establish the proper address for the Defendant. An affidavit of service, without corroborating evidence, is insufficient. A Plaintiff must establish, with corroborating evidence in admissible form, that the address where the Defendant was served is a proper address under CPLR 308. To be clear, a request for change of address from the Postmaster merely containing a post office stamp, an Accurrint search, and a credit report inquiry is insufficient as they rely on hearsay information. In order to satisfy the exception to the hearsay rule, the contents of the report must be sworn to by an authorized employee, must provide information for the Court to assess the accuracy of the record proffered, and must meet the requirements of CPLR 4518, as it is well-settled that the evidence submitted in support of a default judgment must be in admissible form. Accordingly, the Plaintiff’s motion is denied in its entirety and the instant case is dismissed. Dated: October 11, 2019
