Allen v Lawrence

[*1] Allen v Lawrence 2012 NY Slip Op 51258(U) Decided on July 12, 2012 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2012
Supreme Court, Kings County

Donna Allen, Plaintiff,

against

Pauline Lawrence, Defendant.



4443 /11



Attorney for Plaintiff

Joyce Elie, Esq.

The Dominique Group, PLLC 225 Broadway

Suite 2515

New York, New York 10007

212-510-8598

Defendant has not appeared

Francois A. Rivera, J.

By notice of motion filed on April 4, 2012, under motion sequence number four, plaintiff Donna Allen has moved, pursuant to CPLR 3215, for a default judgment against defendant Pauline Lawrence for failure to appear or answer the summons and verified complaint. Plaintiff seeks an order: 1) declaring null and void a deed in which plaintiff transferred 35% interest in certain real property (the subject premise) to the defendant; 2) granting a judgment in plaintiff's favor against defendant in the amount of $52,800.00, plus interest; 3) declaring plaintiff to be the lawful owner of the subject premise; 4) granting a permanent injunction barring the defendant from using or disposing of the subject premise; and 5) awarding damages, attorney fees and disbursement of this action.

BACKGROUND On February 24, 2011, plaintiff commenced the instant action by filing a summons with notice with the Kings County Clerk's office. On March 14, 2011, plaintiff [*2]filed an amended summons and verified complaint. Defendant has neither appeared nor answered the complaint.

Plaintiff's complaint alleges, among other things, that on October 26, 2005, she acquired title to real property located at 122 Stuyvesant Avenue, Brooklyn, New York, Block 1610, Lot 48 (the subject premise) . She further alleges that on or about September 6, 2008, defendant fraudulently induced her to convey a 35% interst in the subject premise to the defendant. Since then, the defendant has allegedly placed two tenants at the subject premise and collected and kept rental income from them without the plaintiff's consent.

MOTION PAPERS

The plaintiff's motion papers consist of a notice of motion, an affirmation of plaintiff's counsel and four annexed exhibits labeled A through D. Exhibit A is a copy of the summons with notice. Exhibit B is a copy of the amended summons and verified complaint. Exhibit C is a copy of an affidavit of service of the summons and verified complaint upon the defendant. Exhibit D is a copy of an affidavit of service of the amended summons and complaint with additional notice and an affidavit of service of the instant motion upon the defendant.

LAW AND APPLICATION

3215 (a) permits a plaintiff to seek default when the defendnat has failed to appear. "On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting plaintiff's claim, and proof of the defaulting party's default in answering or appearing" (Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc., 89 AD3d 649 (2d 2011) ) . "CPLR 3215 (f) states that upon any application for judgment by default, proof of facts constituting claim, default, and amount due are to be set forth in affidavit made by the party'" (HSBC Bank USA, N.A. v. Betts, 67 AD3d 735, 736 (2d 2009) ) .

CPLR 320 (a) provides that a party is not required to answer a complaint until he or she is served with the summons (Howard B. Spivak Architect, P.C. v. Zilberman, 59 AD3d 343, 344 (1d 2009) ) . Pursuant to CPLR 320, a "defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending time to answer." For the reasons set forth below, the plaintiff not only failed to demonstrate the defendant's default, but also failed to submit proof of the facts constituting her claim.

A plaintiff seeking to assert jurisdiction over a defendant "bears 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 2011) ) (quoting Santiago v. Honcraft, 79 AD3d 847, 848 (2d 2010) ) . Service of process must be made in strict compliance with statutory methods for effecting personal [*3]service upon a natural person pursuant to CPLR 308 (Id.) .

The affidavit of service submitted in support of the instant motion demonstrates that plaintiff attempted service of the summons and verified complaint pursuant to CPLR 308 (2) .

CPLR 308 (2) provide as follows: Personal service upon a natural person. Personal service upon a natural person shall be made by any of the following methods:

2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served 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 delivery 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 delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision (a) of section two hundred thirty-two of the domestic relations law.

CPLR 308 (2) requires that the delivery to a person of suitable age and discretion occur at the actual place of business, dwelling place or usual place of abode of the person to be served. Another requirement is a mailing to either the recipient's last known residence or actual place of business with the delivery and mailing occurring within 20 days of each other. The plaintiff must also file proof of the service with the clerk of the court designated in the summons within twenty days of the delivery or the mailing, whichever is later. The proof of service must identify the person of suitable age and discretion and state the date, time and place of service.

Here, the affidavit of the process server, states that he served the summons and verified complaint on the defendant on March 22, 2011 at 10-15 Bay 31st Street, Far Rockaway, New York 11691, City of Far Rockaway, New York, at 7:40 pm by delivering a true copy to Courtney Lawrence, a person of suitable age and discretion. Although he gave a specific address for the personal delivery to Courtney Lawrence, he did not state whether the location was a place of business or a dwelling.

In the next paragraph he states that he mailed a copy of the summons and verified complaint to the defendant's "last known business, dwelling place or place of abode". Once again, he did not state whether the location was a business or a dwelling. Additionally, he does not state the date he mailed the summons and verified complaint. For the reasons set forth above, the affidavit of service is ambiguous and "impermissibly [*4]vague" see also (Seafood Emporium Fish Mkt., Inc. v. Lee, 26 Misc 3d 141 (NY App. Term 2010) ) . Plaintiff has not demonstarted proper service of the summons and verified complaint.

As previously indicated, plaintiff also failed to provide proof of the underlying claim. Pursuant to CPLR 3215 (f) , proof of facts establishing the claim requires an affidavit by the party setting forth the facts constituting the elements of the claim (HSBC Bank USA, N.A. v. Betts, 67 AD3d 735, 736 (2d 2009) ) . There is no affidavit by the plaintiff. CPLR 105 (u) permits a verified complaint to substitute an affiadvit if needed. However, as the instant complaint was not verified by the plaintiff, it may not be consideresd as a sworn affidavit. Therefore, there is no proof offered by the plaintiff of the facts constituting her claim.

Plaintiff's motion for a default judgment is denied without prejudice.

The foregoing constitues the decision and order of this court.

Enter_____________________________x

J.S.C.

Enter forthwith_____________________________x

J.S.C.