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Hickman v. Beretta

Supreme Court, Nassau County

November 14, 2017

Michelle Hickman, Plaintiff,
v.
Gabriella C. Beretta and STEVEN GENTILE, Defendants.

          Plaintiff's counsel: Joseph B Viener, Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C.

          Leonard D. Steinman, J.

         The following submissions, in addition to any memoranda of law submitted by the parties, have been reviewed in preparing this Decision and Order:

         Plaintiff's Notice of Motion, Affirmation, Affidavit & Exhibits 1

         Motions seeking to enter or vacate default judgments are routinely made before this and other courts. The requirements to obtain a default judgment are well known and often repeated-there is no shortage of caselaw in this area. Occasionally though, circumstances present themselves that trigger a re-examination of what is thought to be a well-established area of the law and cautions against the simple rote application of familiar rules.

         This case presents such circumstances. Plaintiff seeks a default judgment against two defendants who purportedly were served pursuant to CPLR §308(2). But plaintiff provides no facts to support the assertion that the location at which the pleadings were left was one of the defendant's "actual place of business, dwelling place or usual place of abode, " as required by the statute. Instead, plaintiff relies upon a conclusory assertion in this regard contained in her process server's affidavit-an assertion inconsistent with plaintiff's summons.

         It is often said that a process server's affidavit constitutes prima facie evidence of proper service. See, e.g., Youngstown Tube Co. v. Russo, 120 A.D.3d 1409 (2d Dept. 2014). This case highlights the dangers of such a sweeping generality, particularly where a default judgment is sought following purported service pursuant to CPLR §308(2). It is more properly stated that the facts contained in a process server's affidavit may be relied upon to prima facie establish proper service. Where a process server's affidavit-or other submission in support of a default judgment-fails to contain facts evincing that process was delivered at a defendant's "actual place of business, dwelling place or usual place of abode" pursuant to CPLR §308(2), no default can be entered in reliance upon that provision.

         BACKGROUND

         Plaintiff commenced this action on March 21, 2017. She seeks to recover for personal injuries allegedly sustained when she slipped and fell on an icy walkway located at 1023 Theodora Street in Nassau County, New York (the premises). In her Verified Complaint, plaintiff alleges that defendants own the premises. In her Summons, plaintiff identifies defendant Steven Gentile's address as the premises. With respect to defendant Gabriella C. Beretta, however, plaintiff identifies an apartment in Whitestone, New York as her address.

In support of her motion, plaintiff submitted two affidavits of service that reflect that the defendants were served on April 13, 2017 by serving someone of suitable age and discretion at the premises with a follow-up mailing to the premises. The county clerk's file reveals that the affidavits were filed on April 18, 2017. [1] Plaintiff and her counsel attest that defendants have failed to serve an answer within the statutory period or otherwise appear, and no request for an extension of time has been made. Plaintiff now seeks an order granting judgment on default against both defendants in this action pursuant to CPLR §3215. No opposition has been submitted by either defendant.

         THE AFFIDAVITS OF SERVICE

         The affidavits of service state that both defendants were served by delivering copies of the pleadings on April 13, 2017, at 5:20 p.m., at the premises to a "Jane Doe"-a white individual with blonde hair who refused to provide her name-who is described as a person between 51-65 years of age. Jane Doe confirmed that neither defendant was in the military. Both affidavits are on pre-printed forms that contain a place for the process server to check a box reflecting that each defendant was served at premises constituting either (1) the defendant's "actual place of business/employment" or (2) "dwelling house (usual place of abode)." In both instances, the process server checked the box reflecting that each defendant was served at his or her "dwelling house (usual place of abode)."

         LEGAL ANALYSIS

         Absent valid proof of service, a default judgment pursuant to CPLR §3215 may not be entered. Widman v. Turner, 55 Misc.3d 131 (A)(App Term, 2d Dept. 2017); see also Daniels v. King Chicken & Stuff, Inc., 35 A.D.3d 345 (2d Dept. 2006). This requirement is statutory, and also reflects the burden a plaintiff bears to establish by a preponderance of the evidence that jurisdiction over a defendant was obtained by proper service of ...


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