Van Salisbury v Elliot-Lewis, Commander Elec., Inc.

[*1] Van Salisbury v Elliot-Lewis, Commander Elec., Inc. 2006 NY Slip Op 51807(U) [13 Misc 3d 1213(A)] Decided on July 19, 2006 Supreme Court, Suffolk County Pines, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 19, 2006
Supreme Court, Suffolk County

Arthur Van Salisbury, Sr. and Carol Van Salisbury, Plaintiffs,

against

Elliot-Lewis, Commander Electric, Inc., and Controlled Wiring, Inc., Defendants.



20413-2004



Michael Rose, Wsq.

185 Madison Avenue, 8th Floor

New York, New York 10016

Attorney for Defendant Elliot-Lewis

Molod Spitz & DeSantis

104 West 40th Street

New York, New York 10018-3617

Attorney for Defendant Commander Electric

Rivkin Radler LLP

926 Eab Plaza

Uniondale, New York 11556-0926

Attorney for Defendant Controlled Wiring

Controlled Wiring, pro se

15 Loret Lane

East Northport, New York 11731

Emily Pines, J.

ORDERED, that this second motion by Plaintiff for a default judgment against Defendant CONTROLLED WIRING, INC. pursuant to C.P.L.R. §3215 is denied with leave to renew upon proper submissions.

By Order (PINES, J.) dated February 3, 2006, Plaintiff's prior application for a default judgment was denied with leave to renew upon proof of proper service upon Defendant CONTROLLED WIRING, INC. The Affidavit of Service submitted on that motion provided that the "son" of the Defendant was served; such was insufficient to demonstrate proper service upon a corporation.

Plaintiff has now essentially renewed his motion for a default judgment. However, it is still unclear from the submissions whether Plaintiff properly served Defendant CONTROLLED WIRING, INC., with the Supplemental Summons and Verified Complaint pursuant to C.P.L.R. §311. The Affidavit of Service annexed to the moving papers merely indicates that one "Deirdre Hutton" who identified herself as an "employee" of the corporation, was served. Such service is insufficient to comply with the mandates of CPLR §311, which requires that personal service upon a corporation be made by delivery 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." The identification of "an employee" does not establish proper service and thus Plaintiff is not entitled to entry of a default judgment.

The motion is denied with leave to renew upon submission of an Affidavit of Service demonstrating compliance with the C.P.L.R.

Dated: July 19, 2006

Riverhead, New York

______________________________

Hon. Emily Pines

J. S. C.