Travelers Ins. Co. v Perrotta

[*1] Travelers Ins. Co. v Perrotta 2007 NY Slip Op 51566(U) [16 Misc 3d 1124(A)] Decided on July 26, 2007 Supreme Court, Suffolk County Mayer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2007
Supreme Court, Suffolk County

Travelers Insurance Company, as subrogee of Robert Borut, Plaintiff(s),

against

April Perrotta and Michael Keegan, Defendant(s).



7742-2006



Law Offices of Steven I. Hilsenrath

Attorneys for Plaintiff

1803 Gravesend Neck Road

Brooklyn, New York 11229

April Perrotta

Defendant Pro Se

12 Rosemary Lane

Centereach, New York 11720

Tomao & Marangas, Esqs.

Attorneys for Deft Keegan

300 Garden City Plaza

Garden City, New York 11530

Peter H. Mayer, J.

Upon Due Deliberation and Consideration by the Court of the foregoing papers, the motion is decided as follows: it is

ORDERED that the plaintiff's motion for a default judgment against the defendant is considered under CPLR §3215, CPLR §308 and 50 USCS §521, and is hereby denied; and it is further

ORDERED that counsel for the movant shall serve a copy of this Order upon all parties at their last known address, or upon their attorneys if represented by counsel, pursuant to CPLR §2103(b)(1),(2) or (3) and shall thereafter file the affidavit(s) of service with the Suffolk County Clerk.

This subrogation action arose from a fire that occurred in the bedroom apartment at the premises occupied by the plaintiff's subrogor, Robert Borut, located at 6 Lafayette Avenue, Lake Grove, New York. The plaintiff alleges that on June 18, 2004 the defendants were negligent in placing combustible materials on top of an electrical cord, causing the cord to overheat and ignite, resulting in a fire and property damage in the amount of $52,435.21. The plaintiff now moves for a default judgment against the defendant, April Perrotta, pursuant to CPLR 3215(a), which states, in relevant part: "When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him."

A copy of the plaintiff's summons and complaint was purportedly served upon Ms. Perrotta by the so-called "nail and mail" method pursuant to CPLR §308(4). According to the moving papers, the plaintiff's process server attempted to deliver the summons and complaint to Ms. Perrotta at 12 Rosemary Lane, Centereach, New York 11720 on April 10, 2006 at 7:38 p.m., on April 11, 2006 at 6:52 a.m., and on April 12, 2006 at 11:38 a.m. According to the affidavit of service, the process server then affixed a copy of the summons and complaint to the door at the 12 Rosemary Lane address on April 12, 2006, and mailed a copy to the same address on the same date. There is no indication in the affidavit of service that the process server confirmed with a neighbor or anyone else that 12 Rosemary Lane was the defendant's address.

The "nail and mail" method of service pursuant to CPLR §308(4) may be used only where personal service under CPLR §308(1) and (2) cannot be made with due diligence (Lemberger v Khan, 18 AD3d 447, 794 NYS2d 416 [2d Dept 2005]). The due diligence requirement of CPLR §308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received (O'Connell v Post, 27 AD3d 630, 811 NYS2d 441 [2d Dept 2006]; Scott v Knoblock, 204 AD2d 299, 611 NYS2d 265 [2d Dept 1994]; Kaszovitz v Weiszman, 110 AD2d 117, 120, 493 NYS2d 335 [2d Dept 1985]).

Since there is no indication that the process server made any attempt to locate the [*2]defendant's business address or to effectuate personal service thereat, "due diligence" under CPLR §308(4) has not been shown (Sanders v Elie, 29 AD3d 773, 816 NYS2d 509 [2D Dept 2006]; Earle v Valente, 302 AD2d 353, 754 NYS2d 364 [2d Dept 2003]; Annis v Long, 298 AD2d 340, 751 NYS2d 370 [2d Dept 2002]). Inasmuch as the plaintiff has failed to meet the "due diligence" requirement for so-called "nail and mail" service under CPLR §308(4), jurisdiction over defendant April Perrotta has not been established and the plaintiff's motion must be denied (Sanders v Elie, supra ; Earle v Valente, supra ; Annis v Long, supra ).

The plaintiff's affidavit of service is also defective, in that it is devoid of any statement as to the military status of the defendant. Title 50 USCS §521, which applies in state courts, was enacted for the "protection of service members against default judgments." Pursuant to 50 USCS §521(a), this section "applies to any civil action or proceeding in which the defendant does not make an appearance" (emphasis supplied).

Under 50 USCS §521(b)(1), "the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit: (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service." Under §521(b)(4), "[t]he requirement for an affidavit under paragraph (1) may be satisfied by a statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury" (emphasis supplied). Here, the plaintiff's affidavit of service does not contain the statutorily required statement as to the military status of the defendant, April Perrotta. Therefore, pursuant to 50 USCS §521(b), a judgment of default may not be entered against Ms. Perrotta. Accordingly, the plaintiff's motion must be denied on these grounds, as well.

Turning to the papers submitted by defendant Michael Keegan, counsel for Mr. Keegan submits only counsel's affirmation in support of the plaintiff's motion. Keegan's papers do not include a notice of motion or cross-motion. Despite this lack of notice, defendant Keegan asks the Court to grant him affirmative relief in the form of a default against defendant Perrotta with respect to the cross-claims asserted by Keegan against Perrotta. The failure to properly notice the parties of the relief requested, however, precludes granting of such relief.

With respect to motion practice, 22 NYCRR § 202.7(a) states in relevant part that "[t]here shall be compliance with the procedures prescribed in the CPLR for the bringing of motions" and that "except [with respect to orders to show cause], no motion shall be filed with the court unless there have been served and filed with the motion papers . . . a notice of motion." CPLR §2211 states that a "motion is an application for an order" and a "motion on notice is made [only] when a notice of the motion or an order to show cause is served" (emphasis supplied). More specifically, CPLR §2214(a) requires that a "notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (emphasis supplied). With regard to time [*3]for service of a motion, CPLR §2214(b) requires that a "notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard" (emphasis supplied). Keegan's failure to file a notice of motion, or its equivalent, precludes any affirmative relief in favor of Keegan.

Defendant Keegan has also failed to prove service of his answer and cross-claims upon defendant Perrotta. In this regard, the affirmation by Keegan's counsel admits that although counsel attempted to mail Keegan's answer to Perrotta, such mailing was returned as "undeliverable." No other attempt was ever made to serve Perrotta with Keegan's answer and cross-claims, yet Keegan requests an order of default against Perrotta as to those cross-claims. To grant a default against Perrotta on cross-claims admittedly never served upon Perrotta would be to ignore the notion of due process upon which our judicial system is premised.

Also precluding a default judgment in favor of Keegan on the cross-claims is Keegan's failure to submit an "affidavit made by the party" regarding "proof of the facts constituting the claim," as required by CPLR §3215(f) before an application for judgment by default may be granted. In the absence of either a proper affidavit by the party or a complaint verified by the party, not merely by an attorney with no personal knowledge, the entry of judgment by default is erroneous (see, Peniston v Epstein,10 AD3d 450, 780 NYS2d 919 [2d Dept 2004]; Grainger v Wright, 274 AD2d 549, 713 NYS2d 182 [2d Dept 2000]; Finnegan v. Sheahan, 269 AD2d 491, 703 NYS2d 734 [2d Dept 2000]; Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 [2d Dept 1996]; Mullins v. DiLorenzo, 199 AD2d 218; 606 NYS2d 161 [1st Dept 1993]).

Based on the foregoing, the plaintiff's motion for default against defendant Perrotta, and defendant Keegan's request for default against defendant Perrotta on the cross-claims are denied.

This constitutes the Decision and Order of the Court.

Dated:

Peter H. Mayer, J.S.C.