Aydin v New Super Gujrat Auto Repair, Inc.

[*1] Aydin v New Super Gujrat Auto Repair, Inc. 2012 NY Slip Op 50199(U) Decided on February 8, 2012 Supreme Court, Kings County Sweeney, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 8, 2012
Supreme Court, Kings County

Hayrettin Aydin, Plaintiff,

against

New Super Gujrat Auto Repair, Inc., Defendants,



5399/11



The Edelsteins, Faegenburg & Brown, by: Glenn K. Faegenburg, Attorneys for the Plaintiff, 61 Broadway, Suite 2210, New York, New York 10006.

Peter P. Sweeney, J.

Motion Date: 2-6-12

Motion Cal. No.: 4

DECISION/ORDER

The following papers numbered 1 to _1_ were read on this motion:

Papers:

Notice of Motion/Order to Show Cause

Affidavits/Affirmations/Exhibits.............................................

Answering Affirmations/Affidavits/Exhibits......................................

Reply Affirmations/Affidavits/Exhibits..............................................

Other.................................................................................................... Numbered:

1Upon the foregoing papers, the motion is decided as follows:

The plaintiff in this action to recover damages for personal injuries moves by notice of motion to enter a default judgment against defendant New Super Gujrat Auto Repair, Inc., a domestic corporation, due to its failure to appear in the action. Plaintiff's motion is unopposed. [*2]

The exhibits annexed to the notice of motion demonstrate that defendant was served with the summons and complaint on March 15, 2011, pursuant to Business Corporations Law § 3069(b), when they were delivered to the Secretary of State, and that the defendant has not appeared in the action to date. The affidavit of service of the notice of motion and accompanying exhibits reflects that it was mailed to the defendant at its last known address on May 26, 2011. The exhibits include a copy of the summons and a copy of the affidavit of service reflecting service of the summons upon the Secretary of State. The motion was made returnable on June 16, 2011 but did not appear on the Court's calendar until February 6, 2012.

An application for a default judgment must be accompanied by an affidavit demonstrating compliance with CPLR 3215(g)(4)(I) and if such an affidavit is lacking, the application for leave to enter a default judgment is defective and should be denied ( see Vekiareilis v. Pall Corp., 302 AD2d 375, 754 N.Y.S.2d 564, 2003 NY Slip Op 10711 [2nd Dept, Feb. 3, 2003]; Ocuto Blacktop & Paving Co. v. Trataros Constr., 277 AD2d 919, 715 N.Y.S.2d 565 [4th Dep't 2000]; Rafa Enters. v. Pigand Mgt. Corp., 184 AD2d 329, 586 N.Y.S.2d 888 [2nd Dep't 2003]). CPLR 3215(g)(4)( I) provides: "When a default judgment based upon non-appearance is sought against a domestic . . . corporation which has been served pursuant to [Business Corporations Law § 306(b)], an affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the defendant corporation at its last known address at least twenty days before the entry of judgment." CPLR 3215(g)(4)(ii), in pertinent part, provides: "The additional service of the summons by mail may be made simultaneously with or after the service of the summons on the defendant corporation pursuant to [Business Corporations Law § 306(b)], and shall be accompanied by a notice to the corporation that service is being made or has been made pursuant to that provision."

Here, the affidavit of service of the notice of motion sufficiently demonstrated compliance with CPLR 3215(g)(4)(I). It demonstrated that an additional copy of the summons was mailed to the defendant at least twenty (20) days before any judgment in this case will be entered. It also demonstrated that along with the notice of motion, defendant was provided with a copy of the affidavit of service of the summons and complaint which in the Court's view, constituted sufficient notice to the defendant that it was served with the summons and complaint pursuant to Business Corporations Law § 306(b).

Since the mailing of the notice of motion and accompanying exhibits satisfied the dictates of CPLR 3215(g)(4)(I ) and CPLR 3215(g)(4)(ii), plaintiff was not required to annex to the motion a separate affidavit demonstrating compliance with these provisions. Inasmuch as plaintiff has otherwise demonstrated his entitlement to a default judgment, it is hereby

ORDERED that plaintiff's motion is GRANTED on default; and it is further

ORDERED that a Note of Issue is to be filed within thirty (30) days from the signing of this order; and it is further [*3]

ORDERED that an Inquest and assessment of damages is scheduled for April 9, 2011, in Room 366 at 2:30 p.m.

A copy of this order is to be served on all sides within fifteen (15) day with notice of entry.

This constitutes the decision and order of the Court.

Dated: February 8, 2012

______________________________

PETER P. SWEENEY, A.J.S.C.