Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of motion of Jean G. Mathurin and Jasmine Rock (hereinafter the plaintiffs) filed on December 8, 2022, under motion sequence number two, for an order pursuant to CPLR 3215 granting a default judgment against defendants Dwayne Brown and Cerecia Forbes Brown (hereinafter the defendants) for failing to appear or answer the complaint. There is no opposition to the motion. Notice of Motion Amended Notice of Motion Affirmation in Support Affidavit in Support Memorandum of Law in Support Exhibits 1-9 Affidavit of Service of the Amended Notice of Motion Affirmation of Service of the Amended Notice of Motion DECISION & ORDER BACKGROUND On December 13, 2021, the plaintiffs commenced the instant action by filing a summons and complaint (hereinafter the commencement papers) and other documents with the Kings County Clerk’s office (KCCO). The complaint alleges thirty-three allegations of fact in support in support of a single cause of action seeking ejectment of the defendants from a certain premises. The complaint alleges the following salient facts. The defendants entered into possession of the Basement Apartment of 459 38th Street, Brooklyn, New York 11203 (the subject premises) pursuant to an oral agreement creating a month-to-month tenancy in 2018. In 2014, the defendants resided in the First Floor Apartment until they moved to the Basement Apartment in 2018. The plaintiffs allege that the defendants have not paid rent since January 2021. In July 2021, a 90-day notice with an annexed COVID-19 Hardship Declaration was duly served upon the defendants. The affidavit of Robert Haynes was filed with complaint as proof of service. Since serving the 90-day notice, no rent has been paid or accepted. The plaintiffs further allege that they are not aware of any financial or other hardship due to the COVID-19 pandemic. Having received no signed COVID-19 Hardship Declaration prior to the commencement of the instant action, the plaintiffs seek a judgment granting an order of possession, a writ of assistance, and costs of suit as allowable by law. The defendants have neither appeared nor answered the complaint. LAW AND APPLICATION The plaintiffs seek a default judgment against the defendants for failure to appear or answer the complaint. On a motion for leave to enter a default judgment pursuant to CPLR 3215, the plaintiff must prove proper service of the summons and complaint on the defendant (Atlantic Cas. Ins. Co. v. RJNJ Services, Inc., 89 AD3d 649, 651 [2d Dept 2011]). Additionally, the plaintiff must submit proof of the defendants’ default in answering or appearing and must submit proof of facts sufficient to establish a viable claim (id.; see also CPLR 3215[f]). CPLR 3215(f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit “made by the party” (HSBC Bank USA, N.A. v. Betts, 67 AD3d 735, 736 [2d Dept 2009]). A plaintiff seeking to assert jurisdiction over a defendant must bear the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process (Gottesman v. Friedman, 90 AD3d 608, 609 [2d Dept 2011], quoting Santiago v. Honcraft, 79 AD3d 847, 848 [2nd Dept 2010]). On December 13, 2021, the plaintiffs commenced the instant action. On January 3, 2021, the plaintiffs electronically filed two affidavits of the service of the commencement papers, one for each one of the defendants. Dainon Ward, plaintiff’s licensed process server (hereinafter Ward), averred service of the commencement papers and other documents on Dwayne Brown and Cerecia Forbes Brown as follows. Ward attempted to serve each defendant at their shared residence on December 23, 2021, at 11:11 a.m. and again on December 29, 2021, at 8:51 p.m. That proving unsuccessful, on Saturday, January 1, 2022, at 4:19 p.m., he then affixed the commencement papers and other documents at 459 East 38th Street, Basement Apartment, Brooklyn, New York. On January 3, 2022, Ward then mailed the documents to each defendant at the same address through the United States Postal Service. The envelope bore the legend “personal and confidential” and did not indicate on the outside, thereof by return address or otherwise that the communication was from an attorney or concerned an action against the defendant. On January 3, 2022, Ward filed each of the affidavit of service of the commencement papers and other documents with the Kings County Clerk’s office. CPLR §308(4) provides as follows: “where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing[…]“ When a plaintiff seeks a default judgment, the burden is on the plaintiff to prove proper service upon the defendant with the summons and complaint. Each of the affidavits of plaintiff’s process server demonstrates that he attempted service of the summons and complaint on both defendants pursuant to CPLR §308(4). The affidavit of service of the plaintiff’s process server indicates that he made two attempts to serve the commencement papers upon each defendant at their residence but there was no one there each time. The first attempt was made on Thursday, December 23, 2021, at 11:11 a.m..; the second was made on Wednesday, December 29, 2021, at 8:51 p.m. The two attempts proving unsuccessful, on January 1, 2022, at 4:19 p.m. he affixed the papers one for each of the defendants at their shared residence. On January 3, 2022, Ward then mailed the documents to each of the defendants at the same address where the delivery was attempted. A plaintiff may only resort to service pursuant to CPLR §308(4) where service pursuant to CPLR §308(1) and (2) cannot be made with due diligence (County of Nassau v. Lotosky, 34 AD3d 414 [2d Dept 2006]). Only one of the two attempts at service on each of the defendants was made during the work week a during normal business hours when it could reasonably have been expected that the defendants would either be working or be in transit to or from work (see Earle v. Valente, 302 AD2d 353 [2d Dept 2003]). Moreover, the affidavit of the plaintiff’s process server, together with the papers submitted with the instant motion failed to demonstrate that the process server attempted to ascertain each of the defendants’ business address and to effectuate personal service at that location, pursuant to the provisions of CPLR §308(1) and (2) (County of Nassau v. Long, 34 AD3d 787 [2d Dept 2006]). Having failed to demonstrate the exercise of due diligence before attempting service of the summons and complaint pursuant to CPLR 308(4), plaintiff’s motion for a default judgment must be denied. The denial, however, is without prejudice. CONCLUSION The motion of Jean G. Mathurin and Jasmine Rock for an order pursuant to CPLR 3215 granting a default judgment against defendants Dwayne Brown and Cerecia Forbes Brown for failing to appear or answer the complaint is denied. The foregoing constitutes the decision and order of the court.
