The following papers numbered 1 to 3 were read on the motion of plaintiff Allstate Insurance Company (“Allstate”) as Subrogee of Sherrie Zwail (“Zwail”) seeking an order granting judgment pursuant to CPLR 3215 against defaulting defendant New York Installation Inc. (“NY Installation”). PAPERS NUMBERED Notice of Motion-Affirmation-Exhibits 1-3 Allstate commenced this action on or about August 24, 2020, by filing a summons and complaint for judgment against NY Installation in the sum of $4,050. Allstate alleges that on August 29, 2018, defendant, an asbestos removal service, negligently caused damage to the property owned by its’ insured, Zwail, during the performance of remediation services. Pursuant to an insurance policy, Allstate reimbursed the insured for the loss and now, as subrogee for the insured, seeks reimbursement from NY Installation. To date, NY Installation has neither filed an answer nor appeared in this action. CPLR 3215 requires that a plaintiff seeking default demonstrate entitlement to that judgment by submitting: (1) proof of service of the summons and complaint; (2) proof of the facts constituting its claim; and (3) proof of the defendant’s default in answering or appearing. (See CPLR §3215(f); Matone v. Sycamore Realty Corp., 50 AD3d 978 [2d Dept 2008]). CPLR 311 provides that personal service on a corporation may be accomplished by delivering the summons “to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service” (CPLR 311[a][1]). Alternatively, BCL 306 permits service of the summons and complaint upon the Secretary of State (BCL 306[b][1]). In this instance, plaintiff’s affidavit of service demonstrates that on September 10, 2020, plaintiff made service of process upon an individual, “Sophia V,” who refused to give her last name, an individual identified by the process service as someone that purportedly was of suitable age and discretion, authorized to accept service at “C/O Brian Golub, CPA 2 Roosevelt Ave, Port Jefferson Station, NY 11776.” According to records on file with the New York State Department of State, the agent designated to accept service of process on behalf of defendant is Brian Golub, CPA, located at 2 Roosevelt Ave, Port Jefferson Station, NY 11776. Defendant designated Mr. Golub, in his personal capacity as a certified public accountant, to be its’ agent to accept service of process, not the PLLC that Mr. Golub is a member of, or any other corporate entity. Plaintiff served an individual not identified by defendant as the individual agent authorized to accept service of process on its’ behalf. The affidavit of service is devoid of any description as to how the individual who allegedly accepted service on behalf of Brian Golub, CPA, was authorized to accept such service on his behalf. An internet search demonstrates that Mr. Golub is a member of a larger firm, an LLP. However, defendant did not designate the firm to be its’ agent to accept service of process. Thus, anyone served other than Mr. Golub, or designated by Mr. Golub, would require plaintiff to make the additional service of the summons and complaint by mail and/or service upon the Secretary of State (see BCL 306). The Court notes that the instant motion was also served at the Port Jefferson Station office address for Mr. Golub. However, the affidavit of service for the instant motion states that the defendant, in its’ corporate name, was served at that address. The affidavit of service for the motion is devoid of any reference to Mr. Golub — when the information on file with the Department of State indicates that service of process was to be indicated as “c/o Brian Golub, CPA.” The Court cannot assume that it would be reasonable for defendant to have been properly served the instant motion at the Port Jefferson Station address, especially without being addressed to Mr. Golub, as agent on behalf of the plaintiff, to accept such service. This is especially notable as defendant’s corporate address is New York City, based on the Department of State records. It is not reasonable to believe that anyone receiving mail at the Port Jefferson office would be required to know that Brian Golub, CPA, was the agent of NY Installation Inc. Thus, the Court cannot assume that the instant motion was in fact delivered to Mr. Golub on behalf of New York Installation. The Court of Appeals has held that “[i]t is hornbook law that a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice. It suffices that the prescribed method is one reasonably calculated, under all the circumstances, to apprise the interested party of the pendency of the action” (internal quotations omitted) (Bossuk v. Steinberg, 58 N.Y.2d 916 [1983]). In this instance, plaintiff has not established that service of process was sufficient to put the defendant on notice of the pendency of this action or of the instant motion for that matter. Ordinarily, the court would be inclined to dismiss this case. However, the Court notes that this motion was administratively adjourned several times. This motion was dated August 3, 2021 and served on August 10, 2021. Plaintiff made the motion returnable on October 6, 2021, which was rescheduled by the Court to October 12, 2021. On October 12, 2021, the motion was adjourned to November 23, 2021, and then was marked fully submitted on December 21, 2021. In the interest of justice, and in the court’s discretion, plaintiff is granted an extension of time to perfect service of process. Plaintiff is directed to perfect service of process pursuant to the CPLR and/or the BCL within 120 days of the date of this Order. Thereafter, defendant will have the opportunity to submit an answer. When relief is granted, it can be on the merits of the case. CONCLUSION Accordingly, it is ORDERED that plaintiff’s motion for default is denied; and it is further ORDERED that plaintiff shall perfect service of process pursuant to the CPLR and/or the BCL within 120 days of the date of this Order. This constitutes the Decision and Order of this Court. Dated: January 10, 2022
