RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED ON REVIEW OF THIS MOTION FOR DEFAULT JUDGMENT. PAPERS NUMBERED NOTICE OF MOTION AND ANNEXED AFFIDAVITS 1 DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION IS AS FOLLOWS: In this breach of contract action, Plaintiff, Zipcar Inc. (Zipcar), moved this Court ex-parte seeking an Order to enter a default judgment, pursuant to CPLR 3215, against Defendants, Talika McCrae (McCrae) and Clarence Brown (Brown), alleging defendants failed to answer the summons and complaint duly served upon them. For the reasons set forth below, Plaintiff’s motion for default judgment is denied. BACKGROUND Zipcar commenced this action by filing its summons and endorsed complaint on or about July 22, 2019, alleging McCrae entered into a rental car agreement with Zipcar on December 31, 2016, and breached said agreement by permitting Brown, an unauthorized driver, to drive the automobile. Subsequently, Brown allegedly damaged Zipcar’s vehicle in an automobile collision on December 31, 2016. Thus, Zipcar alleges both McCrae and Brown are liable for property damages and seeks to recover $11,958.45. Neither McCrae or Brown interposed an answer to the summons and complaint or appeared at any point in the action. With the Defendants time to answer the summons and complaint expired and Zipcar’s submission of the default judgment motion within one year of the expiration of the due date of the answer, this Court may entertain the motion without any other requirements of Zipcar. (See CPLR 320 [a] and 3215 [c], HSBC Bank USA, Nat’l Ass’n v. Traore, 139 AD3d 1009, 32 NYS.3d 283 [2d Dep't 2016]). In support of Zipcar’s motion for a default judgment, Zipcar submitted (1) the summons and endorsed complaint; (2) affidavits of service of the summons and complaint upon both McCrae and Brown by way of service upon persons of suitable age and discretion (CPLR 308 [2]) and non-military affidavits; (3) an affidavit of additional service of summons and complaint upon both defendants; (4) an uncertified police report indicating defendant Brown was the driver of its vehicle; (5) an affidavit of Monica Bickar, Zipcar’s authorized agent; (6) “Reservation Detail” report; and (7) an estimate from Property Damage Appraisers. ANALYSIS CPLR 3215 governs a party’s request for a default judgment where a party has failed to appear in the action. For this Court to grant a default judgment, the movant is required to meet its prima facie burden and submit requisite proof that (1) service of process of the summons and complaint has been effectuated upon the defaulting party and filed with the court; (2) an affidavit of facts from an affiant with personal knowledge constituting the claim; and (3) proofs that a default occurred and the amount due (see CPLR 3215 [f]; Atlantic Cas. Ins. Co. v. RJNJ Servs. Inc., 89 AD3d 649, 651, 932 NYS2d 109 [2d Dept 2011]). In reviewing Zipcar’s submissions, this Court must first determine that Zipcar has proved by a preponderance of the evidence that jurisdiction was obtained over the Defendants by proper service of process (Gottesman v. Friedman, 90 AD3d 608, 934 NYS2d 436 [2d Dept. 2011]); Frankel v. Schilling, 149 AD2d 657, 540 NYS2d 469 [2d Dep't 1989]). In determining whether Zipcar effectuated service of the summons and complaint upon McCrae at a proper address this Court may review the process server’s affidavit in conjunction with Zipcar’s submissions. CPLR 308 (2) authorizes service of process to be made by delivery to a person of suitable age and discretion at the defendant’s actual place of business, dwelling place, or usual place of abode, and by mailing the summons and complaint to the defendant at either his or her last known residence or actual place of business. Jurisdiction is not acquired pursuant to CPLR 308 (2) unless both the delivery and mailing requirements have been strictly complied with (see Ludmer v. Hasan, 33 AD3d 594, 821 NYS2d 661 [2d Dep't 2006]; McCray v. Petrini, 212 AD2d 676, 622 NYS2d 815 [2d Dep't 1995]; Avakian v. De Los Santos, 183 AD2d 687, 688, 583 NYS2d 275 [2d Dep't 1992]). PROOF OF SERVICE DEFENDANT TALIKA MCCRAE To substantiate proof of service upon Defendant McCrae, Zipcar submitted an affidavit of service averring that service of the summons and endorsed complaint was effectuated on McCrae by delivering the summons and complaint to non-party Corey McCrae (“family member”) pursuant to CPLR 308 (2) on August 14, 2019 at 2:18pm at 1430 Bergen Street, apt 101, at McCrae’s “actual place of business/employment” and filed same with this Court on or about August 30, 2019. Zipcar’s process server further averred it mailed the summons and endorsed complaint to McCrae on August 15, 2019, to the same address where service of process was alleged. On the face of the affidavit it appears that Zipcar has complied with the requirements of CPLR 308 (2) and is afforded the presumption that a process server’s affidavit constitutes prima facie evidence of proper service (City of New York v. Miller, 72 AD3d 726, 727, 898 NYS2d 643 [2d Dep't 2010]). However, a review of Zipcar’s affidavit in support and the documents submitted, reveals there is no address listed on the unsigned generic pre-printed contract and/or other papers included to confirm where McCrae worked and/or lived. Also, Zipcar’s unsigned endorsed complaint is sparse and does not contain any address for McCrae. Resultantly, this Court is left to speculate McCrae’s address and whether McCrae operates a “business or place of employment” in an apartment building at 1430 Bergen Street apt 101 as described in the process server’s affidavit. Additionally, the process server’s affidavit failed to disclose the basis for believing that the place of service was McCrae’s “actual place of business/employment” especially since the location is an apartment assumingly located on the 10th floor. Zipcar has failed to include any information in its moving papers attesting to any address for McCrae and this Court cannot guess whether the process server’s address claimed meets the criteria set forth in CPLR 308 (2) and give it the presumption usually afforded a process server’s affidavit. This Court also notes the building address is the same as that reported in the police report but the apartment differs. The apartment number in the process server’s affidavit is 101 (lower case L) and in the police report is 101(the number 1). Courts have consistently held the summons and complaint must be served at the correct apartment number number (Ariowitsch v. Johnson, 114 AD2d 184, 498 NYS2d 891 [3d Dep't 1986]). Zipcar has failed to identify an address for McCrae and the process server has failed to set forth a basis for service of a family member at an apartment number contrary to that on the police report with no information whatsoever in Zipcar’s submission of an address for McCrae despite alleging the parties entered into a written contract to rent a car. Moreover, “When a default judgment based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry of such judgment, by mailing a copy of the summons by first-class mail to the defendant at his place of residence (CPLR 3215 [g] [3]).” Plaintiff’s affiant states it served the additional notice upon McCrae at 1430 Bergen Street, Apt 101, which is the mimicked address in the process server’s affidavit of service, except the process server lists the apartment as APT# 101 and identifies it as McCrae’s “actual place of business/employment.” Zipcar alleges McCrae failed to pay the contractual lease obligation; thus, CPLR 3215 [g] [3] requires additional notice to be served at McCrae’s residence. Zipcar failed to identify McCrae’s residence in its papers yet allegedly mailed the additional notice to McCrae’s place of business/employment as it copied the address in its process server affidavit, but it copied the wrong apartment number. Thus, Zipcar has failed to mail the additional notice to McCrae’s residence, and as such is not entitled to a default judgment. “Absent proof of valid service a default judgment pursuant to CPLR 3215 may not be entered.” (Widman v. Turner, 55 Misc3d 131 [A], 55 NYS3d 695 [App Term 9th & 10th Jud Dists 2017]; Daniels v. King Chicken & Stuff, Inc., 35 AD3d 345, 827 NYS2d 186 [2d Dep't 2006]). Accordingly, Zipcar has failed to comply with CPLR 308 (2) and CPLR 3215 (g) (3); therefore, this Court is without jurisdiction to enter a default judgment against McCrae PROOF OF SERVICE SUMMONS AND COMPLAINT DEFENDANT BROWN Zipcar submitted a signed police report that lists Brown’s address as “1430 Bergen Street, Apt 101, Brooklyn, New York” in contradiction to the process server’s address for Brown. Zipcar served Brown via substitute service by delivering the summons and complaint to nonparty Sabrina Brown (“family member”) pursuant to CPLR 308 (2) on August 21, 2019 at 4:32 pm at 1043 Rogers Avenue, Apt 3R at Brown’s “dwelling house (actual place of abode).” Additionally, the process server alleges it mailed the documents to Brown at the same address where it accomplished substitute service of the documents on “Sabrina” Brown. The process server’s affidavit of service contains a notation at the bottom that states “DMV Verified 623 N.Y.S.2d 932, 213 A.D.2d 577.” The citation refers to Burke v. Zorba Diner, Inc., 213 AD2d 577, 623 NYS2d 932 (2d Dep’t 1995), where the Second Department held that a defendant may be served pursuant to CPLR 308 (2) by service upon a person of suitable age and discretion at the address on file for the defendant with the Department of Motor Vehicles. In Burke, the defendant testified that he lived at an address different from that listed at the DMV and the court “estopped him from contesting the validity of service to his former address.” In the matter at hand, Brown never appeared in the action to argue whether the summons and complaint was served at an invalid address and this Court, without more, cannot assume that the process server effectuated process of service at a valid address since the police report contains a different address for Brown. Additionally, the process server failed to attach any DMV report verifying Brown’s address which would have easily supported his basis for serving Brown at that address. Moreover, Zipcar failed to proffer any proof or rationale of why service was made at the address in question instead of the address listed in the police report. While this Court has determined there are many adverse uncertainties regarding whether service was effectuated at Brown’s dwelling house (usual place of abode) it is clear that service of process has not been properly effectuated on Brown. The process server’s affidavit avers it mailed the documents to Brown’s “dwelling house (usual place of abode) and not Brown’s last known residence or place of business as is required under CPLR 308(2). Good service of the summons and complaint requires two distinct steps: (1) service upon a person of suitable age and discretion at the defendant’s actual place of business, dwelling place, or usual place of abode; and (2) mailing of the documents, with certain specificity as outlined in the statute, to defendant’s residence or actual place of business (CPLR 308 [2]). The Court of Appeals has held there is a distinction between dwelling house (usual place of abode) and last known residence, and where personal service is made pursuant to CPLR 308 (2) the documents must be mailed to the defendant’s last known residence or actual place of business (Feinstein v. Bergner, 48 NY2d 234, 397 NE2d 1161 [1979]). Furthermore, courts have consistently held that service of process must be made in strict compliance with statutory methods for effecting personal service upon a natural person pursuant to CPLR 308, and any deviation therefrom shall not give the court personal jurisdiction over the defendant (Washington Mut. Bank v. Murphy, 127 AD3d 1167, 1175, 10 NYS3d 95 [2d Dep't 2015]; see also Daguerre, S.A.R.L. v. Rabizadeh, 112 AD3d 876, 878, 978 NYS2d 80 [2d Dep't 2013]; Munoz v. Reyes, 40 AD3d 1059, 1059, 836 NYS2d 698 [2007]; Ludmer v. Hasan, 33 AD3d 594, 594, 821 NYS2d 661 [2006]). Accordingly, this Court is without jurisdiction over Brown since Zipcar has failed to effectuate process of service in strict compliance with CPLR 308 (2). “The burden of proving that personal jurisdiction was acquired over a defendant rest with the plaintiff” Wells Fargo Bank, N.A. v. Decesare, 154 AD3d 717, 717, 62 NYS3d 446 [2d Dep't 2017]). Zipcar has failed to establish proper service of process and a proper mailing of the summons and complaint at a proper address for either Defendant and as such this Court may not grant a default judgment. (Daniels v. King Chicken & Stuff, Inc., supra; Widman v. Turner, supra). Based upon the foregoing, Zipcar’s motion for leave to enter a default judgment against both McCrae and Brown upon their failure to appear in the action or answer the complaint is denied. This constitutes the Decision and Order of the court. Dated: October 20, 2020
