The following electronically filed documents read on this motion by Gavriel S. Gurgov (“Mr. Gurgov” or “plaintiff”) for an order granting him a default judgment against Yue Qun Yu (“Yu”) and Shenuyue Chen (“Chen”) (collectively, the “defendants”), pursuant to CPLR §3215 and setting this matter down for a date certain for an inquest on damages. Moreover, the defendants cross-move for an order: 1) dismissing the complaint based upon expiration of the statute of limitations, res judicata, and prior pending action, pursuant to CPLR §3211(a)(4)(5); or alternatively 2) compelling plaintiff to accept their Answer, pursuant to CPLR §3012(d); 3) granting summary judgment based upon the expiration of the statute of limitations and a prior pending action, pursuant to CPLR §3212; and 4) granting defendants costs and sanctions, pursuant to NYCRR 130-1.1 et seq. Papers Numbered Notice of Motion-Affirmation in Support-Exhibits-Service EF 7-14 Affirmation in Opposition-Exhibits EF 17-19 Amended Notice of Cross Motion-Affirmation in Support-Exhibits EF 32-39 Affirmation in Opposition to Cross Motion-Exhibits EF 40-43 Reply EF 44 Upon the foregoing papers, it is ordered that the motion and cross motion are consolidated herein and determined as follows: This is an action to recover damages for personal injuries, which the plaintiff allegedly sustained in a motor vehicle collision. The plaintiff alleges that on June 25, 2013, the motor vehicle owned by Chen and operated by Yu collided with his motor vehicle on Union Turnpike at its intersection with 147th Street, in Queens County, city and state of New York (“subject accident”). On September 24, 2015, the plaintiff commenced an action against the defendants in connection with the subject accident entitled Gurgov v. Yue Qun Yu, et al, under Index No. 710037/2015 (“First Action”). However, on August 1, 2019, the Honorable Salvatore J. Modica dismissed said action on the grounds that the plaintiff failed to move for a default judgment against the defendants within one year, pursuant to CPLR §3215(c). Thereafter, on January 9, 2020, the plaintiff commenced the instant action (“Second Action”); and on January 16, 2020, the plaintiff allegedly served the defendants by suitable age and discretion, pursuant to CPLR §308(2): The plaintiff’s process server, Curtis Warren (“Mr. Warren”), allegedly served the defendants’ daughter by delivering the summons and complaint to her at 91 Highland Road, Glen Cove, New York; and on January 18, 2020, the plaintiff mailed a copy of said pleadings to the defendants’ residence via first class mail. Subsequently, on January 28, 2020, the plaintiff completed service by filing the affidavits of service with the clerk of the court. Thereafter, on February 27, 2020, the plaintiff filed the instant motion seeking a default judgment against the defendants, pursuant to CPLR §3215. However, the plaintiff’s motion for a default judgment is premature. It is well settled that to be entitled to a default judgment, a plaintiff is required to submit proof of service of the summons and complaint, the facts constituting the claim demonstrating a viable cause of action, and the opposing party’s default in answering or appearing (see CPLR §3215(f); Schimoler v. Newman, 175 AD3d 740 [2d Dept 2019]; Vidal v. Wyckoff Corp., 131 AD3d 600 [2d Dept 2015]; Fried v. Jacob Holding, Inc., 110 AD3d 60 [2d Dept 2013]). “To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense” (Fried v. Jacob Holding, Inc., 110 AD3d at 60; see Wassertheil v. Elburg LLC, 94 AD3d 753 [2d Dept 2012]). “Whether a proffered excuse is ‘reasonable’ is a ‘sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits’” (Fried v. Jacob Holding, Inc., 110 AD3d at 60, quoting Harcztark v. Drive Variety, Inc., 21 AD3d 876, 876-877 [2d Dept 2005]). Furthermore, service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR §308 (see HSBC Mtge. Corp. [USA] v. Hollender, 159 AD3d 883 [2d Dept 2018]; Washington Mut. Bank v. Murphy, 127 AD3d 1167, 1174 [2d Dept 2015]). CPLR §308(2) authorizes service, inter alia, by delivery of the summons and complaint within the state to a person of suitable age and discretion at the defendant’s dwelling place and by mailing the summons to the defendant’s last known residence (see Citibank, N.A. v. Balsamo, 144 AD3d 964 [2016]; Bankers Trust Co. of Cal. v. Tsoukas, 303 AD2d 343 [2d Dept 2003]). The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process (see U.S. Bank, N.A. v. Peralta, 142 AD3d 988 [2d Dept 2016]; Frankel v. Schilling, 149 AD2d 657, 659 [2d Dept 1989]). “[T]he failure to serve process in an action leaves the court without personal jurisdiction…and all subsequent proceedings are thereby rendered null and void” (McMullen v. Arnone, 79 AD2d 496, 499 [2d Dept 1981]; see Krisilas v. Mount Sinai Hosp., 63 AD3d 887, 889 [2d Dept 2009]). Personal jurisdiction is not acquired pursuant to CPLR §308 (2) unless both the delivery and mailing requirements have been complied with (see Josephs v. AACT Fast Collections Servs., Inc., 155 AD3d 1010, 1012 [2d Dept 2017]; Washington Mut. Bank v. Murphy, 127 AD3d 1167 [2d Dept 2105]; Daguerre, S.A.R.L. v. Rabizadeh, 112 AD3d 876, 878 [2d Dept 2013]; Gray-Joseph v. Shuhai Liu, 90 AD3d 988, 989 [2d Dept 2011]). The mailing requirement of CPLR §308 (2) is to be strictly construed (see Citibank v. Harris, 264 AD2d 377 [2d Dept 1999]). More importantly, pursuant to CPLR §308(2), it clearly indicates that “service shall be complete ten days after such filing.” Completion of service is the event that starts the running of defendant’s 30-day time limit to appear in the action. (see CPLR §320(a); see, Helfand v. Cohen, 110 AD2d 751 [2d Dept 1985]; Lancaster v. Kindor, 98 AD2d 300 [1st Dept 1984]; 1 Weinstein-Korn-Miller, NY Civ Prac 308.16)). Thus, the defendants herein had, at least, forty (40) days to appear because the plaintiff served the summons and complaint pursuant to CPLR §308(2). In the case at bar, the plaintiff completed service on January 28, 2020. As a result, the defendants’ time to appear was March 9, 2020. Nonetheless, the defendants served and filed their answer on March 6, 2020, which was within the statutory period. As such, the court finds that the defendants were never in default. (Schimoler v. Newman, 175 AD3d 740 [2d Dept 2019]). Therefore, the plaintiff’s motion for a default judgment must be denied. Notwithstanding the same, the defendants’ cross move to dismiss the complaint based upon expiration of the statute of limitations, res judicata, and another action is pending, pursuant to CPLR §3211(a)(4)(5). It is well settled that “[o]n a motion to dismiss a cause of action pursuant to CPLR §3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired” (Wells Fargo Bank, N.A. v. Burke, 155 AD3d 668, 669 [2d Dept 2017]; U.S. Bank National Association v. Joseph, 159 AD3d 968 [2d Dept 2018]; see also Island ADC, Inc. v. Baldassano Architectural Group, P.C. 49 AD3d 815 [2d Dept 2008]). “The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period” (Singh v. New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 AD3d 780 [2d Dept 2013]; Zaborowski v. Local 74, Serv. Empls Intl. Union, AFL-CIO, 91 AD3d 768 [2d Dept 2012]). A personal injury action is subject to a three-year statute of limitations (CPLR §214(5); Blanco v. American Telephone and Telegraph Co., 90 NY2d 757 [1997]; Aurilia v. Carbonara, 185 AD3d 767 [2d Dept 2020]). In the case at bar, the defendants met their prima facie burden by demonstrating that the statute of limitations began to run on June 25, 2013, when the alleged motor vehicle accident occurred, and that this action was commenced on January 9, 2020, more than three years later. (Barrell v. Glen Oaks Village Owners, Inc., 29 AD3d 612 [2d Dept 2006]). Thus, the burden shifted to the plaintiff to raise a question of fact in opposition. Here, the plaintiff contends that CPLR §205(a) is applicable, which provides, in relevant part, the following: If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff…may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. (Reliance Ins. Co. v. Polyvision Corp., 9 NY3d 52 [2007]; U.S. Bank National Association v. Gordon, 158 AD3d 832 [2d Dept 2018]; Goodman v. Skanska USA Civ., Inc., 169 AD3d 1010 [2d Dept 2019]). Furthermore, in Wells Fargo Bank, N.A. v. Eitani, 148 AD3d 193 [2d Dept 2017], the Appellate Division, Second Department, held that pursuant to a statutory amendment, which took effect in 2008, CPLR §205(a) provides that “[w]here a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” Here, the first action was dismissed “without costs or prejudice” in 2019, well after the effective date of the amendment, on the basis that the plaintiff failed to explain why he delayed for almost four years in moving for a default judgment against the defendants, pursuant to CPLR §3215(c). Judge Modica’s order did not include any findings of specific conduct demonstrating “a general pattern of delay in proceeding with the litigation” (CPLR §205(a); see Marrero v. Crystal Nail, 114 AD3d 101 [2d Dept 2013]). As such, court’s dismissal of the plaintiff’s first action, pursuant to CPLR §3215(c), does not bar him from availing himself to the saving statute, i.e. CPLR §205. Furthermore, the court finds that the requirements of CPLR §205(a) have been satisfied because the plaintiff commenced the first action on September 24, 2015, which was dismissed on August 1, 2019, pursuant to CPLR §3215(c). Within six months, on January 9, 2020, the plaintiff commenced the instant action and completed service of the summons and complaint on January 18, 2020. Clearly, the facts herein meet the requirements of CPLR §205(a) in that: (1) there is no dispute that this action would have been timely commenced when the first action was commenced in 2015; (2) the defendants were served within the six-month period after the first action was dismissed; and (3) the second action is based on the same occurrence as the first action, namely personal injury due to a motor vehicle collision. Further, it is undisputed that the dismissal of the first action was not based upon a voluntary discontinuance, lack of personal jurisdiction, or a final judgment on the merits (see CPLR §205(a)). As such, the defendants’ cross-motion, pursuant to CPLR §3211(a)(5), on the ground that this action is barred by the statute of limitations is denied. Contrary to the defendants’ contentions, Judge Modica’s dismissal of the first action, pursuant to CPLR §3215(c), does not have preclusive effect. It is well settled that a dismissal of an action as abandoned pursuant to CPLR §3215(c) is not an adjudication on the merits unless the court specifically states that it is a merit based dismissal. (Rodrigues v. Samaras, 117 AD3d 1022 [2d Dept 2014] citing Shepard v. St. Agnes Hosp., 86 AD2d 628, 630 [2d Dept. 1982]; see also Interboro Ins. Co. v. Steed, 112 AD3d 557 [1st Dept 2013]; New York Cent. Mut. Fire Ins. Co. v. Barry, 63 AD3d 892 [2d Dept 2009]). In fact, Judge Modica did not indicate on the record that plaintiff’s complaint was being dismissed on the merits. As such, the defendants’ cross-motion to dismiss, pursuant to CPLR §3211(a)(5), on the theory of res judicata is denied. Additionally, the defendants’ contention that the instant action should be dismissed because there is another action pending between the same parties for the same cause of action is also meritless. Under CPLR §3211(a)(4), a court has “broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. It is not necessary that the precise legal theories presented in the first action also be presented in the second action so long as the relief…is the same or substantially the same” (Dec v. BFM Realty, LLC, 153 AD3d 497 [2d Dept 2017], quoting Swartz v. Swartz, 145 AD3d 818, 822 [2d Dept 2016]; see Whitney v. Whitney, 57 NY2d 731 [1982]; Jaber v. Elayyan, 168 AD3d 693 [2d Dept 2019]). Similarly, while a complete identity of parties is not a necessity for dismissal under CPLR §3211(a)(4) (see Proietto v. Donohue, 189 AD2d 807 [2d Dept 1993]; Barringer v. Zgoda, 91 AD2d 811 [3d Dept 1982]), there must at least be a “substantial” identity of parties, “which generally is present when at least one plaintiff and one defendant is common in each action” (Morgulas v. Yudell Realty, 161 AD2d 21 [1st Dept 1990]; see Cellinio & Barnes. P.C. v. Law Off. of Christopher J. Cassar, P.C., 140 AD3d 1732 [4th Dept 2016]; Cherico, Cherico & Assoc. v. Midollo, 67 AD3d 622 [2d Dept 2009]; Proietto v. Donohue, 189 AD2d 807 [2d Dept 1993]). Here, on January 9, 2020, the plaintiff filed a motion for renewal and reconsideration of its prior motion for a default judgment, pursuant to CPLR §2221. However, on January 27, 2021, the Honorable Lourdes M. Ventura denied the plaintiff’s motion. As a result, the first action does not exist. Thus, the defendants’ cross-motion to dismiss, pursuant to CPLR §3211(a)(4), on the ground that another action is pending, is denied. Lastly, the defendants argue that they should be awarded costs and sanctions because plaintiff has commenced a frivolous action, inter alia. “Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party’s attorney for frivolous conduct. Conduct is ‘frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false’” (Brin v. Shady, 179 AD3d 760, 763 [2d Dept 2020], quoting 22 NYCRR 130-1.1 [c]; see also GDG Realty, LLC v. 149 Glen St. Corp., 187 AD3d 994 [2d Dept 2020]). Here, the defendants have not demonstrated that the plaintiff has engaged in frivolous conduct. As such, the defendants’ cross-motion for costs and sanctions is denied. Accordingly, it is hereby ORDERED that plaintiff’s motion for a default judgment, pursuant to CPLR §3215, is denied; and it is further, ORDERED that branch of the defendants’ cross-motion to compel plaintiff to accept their Verified Answer filed in the action on March 6, 2020, pursuant to CPLR §3012(d), is granted; and it is further, ORDERED that branch of the defendants’ cross-motion, pursuant to CPLR §3211(a)(4), is denied; and it is further, ORDERED that branch of the defendants’ cross-motion, pursuant to CPLR §3211(a)(5), is denied; and it is further, ORDERED that branch of the defendants’ cross-motion, pursuant to CPLR §3212, is denied; and it is further, ORDERED that branch of the defendants’ cross-motion, pursuant to NYCRR 130-1.1, is denied; and it is further, ORDERED that any other requested relief not expressly addressed herein has nonetheless been considered by this Court and is hereby denied; and it is further, ORDERED that defendants shall serve, via certified mail, a copy of this decision and order with notice of entry upon the plaintiff on or before April 30, 2021. The foregoing constitutes the decision and order of the court. Dated: March 30, 2021
