A.B. Med. Servs. PLLC v Utica Mut. Ins. Co.

[*1] A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. 2005 NYSlipOp 50777(U) Decided on May 23, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 23, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-1082 K C

A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. LVOV ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o PAUL ANDERSON, Appellants,

against

UTICA MUTUAL INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (R. Garson, J.), entered on May 20, 2004, which denied their motion for entry of a default judgment against defendant.

Order unanimously affirmed without costs.

CPLR 3215 (f) provides that upon application for judgment by default, the applicant "shall file proof of service of the complaint . . . and proof by affidavit made by the party of the facts constituting the claim, the default and the amount due." CCA 402 (b) provides that "[i]f the summons is served by any means other than personal delivery to the defendant within the City of New York, it should provide that the defendant must appear and answer within thirty days after proof of service is filed with the clerk." Pursuant to CCA 409 (a) (1), a copy of the summons with proof of service shall be filed with the clerk of the court in the county in which the action is brought "within fourteen days after service within the City of New York, regardless of how or upon whom it was served." Service of the summons is complete "upon the filing of proof of service, where § 402 (b) is applicable" (CCA 410 [b]).

Pursuant to the foregoing provisions, defendant's time to answer does not commence until [*2]after proof of service is filed. Plaintiffs' moving papers contain no proof of filing of the proof of service, in the absence of which plaintiffs have failed to establish that defendant was in default in answering. Having failed to prove the fact of the alleged "default" (CPLR 3215 [f]), the plaintiffs' motion for entry of a default judgment was properly denied.
Decision Date: May 23, 2005