Whosoever Will Community Church of Christ v Beebe

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Whosoever Will Community Church of Christ v Beebe 2019 NY Slip Op 33139(U) October 18, 2019 Supreme Court, New York County Docket Number: 158441/2018 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/22/2019 09:13 AM NYSCEF DOC. NO. 18 INDEX NO. 158441/2018 RECEIVED NYSCEF: 10/22/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES IAS MOTION 59EFM Justice --------------------------------------------------------------------------------X WHOSOEVER WILL COMMUNITY CHURCH OF CHRIST, Plaintiff, INDEX NO. 158441/2018 MOTION DATE 06/07/2019 MOTION SEQ. NO. 002 -vCATHERINE JOHNSON BEEBE and SHILOH KINGDOM DELIVERANCE INTERNATIONAL MINISTRIES DECISION + ORDER ON MOTION Defendant. -----------------------------------~---------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 11, 12, 13, 14, 15 were read on this motion to/for Upon the ~oregoing JUDGMENT - DEFAULT documents, In this action to void a deed, plaintiff WHOSOEVER WILL COMMUNITY CHURCH OF CHRIST moves for a default judgment based upon the failure of defendants CATHERINE JOHNSON BEEBE and SHILOH KINGDOM DELIVERANCE INTERNATIONAL MINISTRIES to answer or appear. Plaintiff has submitted proof of service of the summons and complaint and proof of service of this motion upon defendant SHILOH KINGDOM DELIVERANCE INTERNATIONAL MINISTRIES. Plaintiff has also submitted an affirmation as to defendant's default pursuant to CPLR 3215 (f). However, the motion must be denied because the plaintiff has not submitted an affidavit of facts in support of the motion pursuant to CPLR 3215 (f), but instead has submitted only an 158441/2018 WHOSOEVER WILL COMMUNITY vs. JOHNSON BEEBE, CATHERINE Motion No. 002 1 of 8 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 10/22/2019 09:13 AM NYSCEF DOC. NO. 18 INDEX NO. 158441/2018 RECEIVED NYSCEF: 10/22/2019 affirmation which is insufficient to support the entry of a default judgment. Nor has the plaintiff included in its moving papers a copy of a sufficiently verified complaint that pursuant to CPLR 3215 (f) could act as an affidavit of facts. Mullins v DiLorenzo, 199 AD2d 218, 219-220 See (1st Dept 1993) ("This Court has held that a complaint verified by counsel amounts to no more than an attorney's affidavit and is therefore insufficient to support entry of judgment pursuant to CPLR 3215. In the absence of either a verified complaint or an affidavit by the party, the entry of judgment by default is erroneous and deemed a nullity." [citations omitted); Georgia Pacific Corp. v Bailey, 77 AD2d 682 (3d Dept 1980). In addition, plaintiff has not submitted proof of the additional mailing of the summons required by CPLR 3215 (g) (4) upon the corporate defendant SHILOH KINGDOM DELIVERANCE INTERNATIONAL MINISTRIES. CPLR 3215 (g) (4) (i) states that "[w]hen a default judgment based upon non-appearance is sought against a domestic or authorized foreign corporation which has been served pursuant to paragraph (b) of section three hundred six of the business corporation law, 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." 158441/2018 WHOSOEVER WILL COMMUNITY vs. JOHNSON BEEBE, CATHERINE Motion No. 002 2 of 8 The rule is Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 10/22/2019 09:13 AM NYSCEF DOC. NO. 18 INDEX NO. 158441/2018 RECEIVED NYSCEF: 10/22/2019 that "[a] default judgment may not be granted against a nonappearing corporate defendant without proof of compliance with the additional service requirement set forth in CPLR § 3215(g) (4) (i)." Carus & Manniello, P.C. v MLG Capital Assets LLC., 2003 NY Slip Op 50598(U), 2003 WL 1093402 (City Ct, White Plains, March 4, 2003) citing Rafa Enterprises, Inc. v Pigand Management Corp., 184 AD2d 329, 330 (1st Dept 1992) ("moving papers were deficient, having failed to set forth an affidavit of service by mail upon the last known address of the corporation, as required pursuant to CPLR 3215 ( f) ( 4) ( i) ") . See, D & D Asphalt Construction Corp v Corealty, LLC, 296 AD2d 432 (2nd Dept 2002). Finally, as to the individual defendant CATHERINE JOHNSON BEEBE there is no proof of service of the summons and complaint filed or attached to the motion as required by CPLR 3215 (f). Accordingly, it is ORDERED that plaintiff's motion for a default judgment is DENIED WITHOUT PREJUDICE to move again upon proper proofs in accordance with the foregoing; and it is further ORDERED that the parties are hereby directed to attend a preliminary conference on January 28, 2020, at 9:30 A.M., at the 158441/2018 WHOSOEVER WILL COMMUNITY vs. JOHNSON BEEBE, CATHERINE Motion No. 002 3 of 8 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 10/22/2019 09:13 AM NYSCEF DOC. NO. 18 INDEX NO. 158441/2018 RECEIVED NYSCEF: 10/22/2019 Courthouse, IAS Part 59, Room 331, 60 Centre Street, New York, New York. OCT 1 B 201L DATE CHECK ONE: CASE DISPOSED GRANTED 0 ~ DENIED NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 158441/2018 WHOSOE:VER WILL COMMUNITY vs. JOHNSON BEEBE, CATHERINE Motion No. 002 4 of 8 D D OTHER REFERENCE Page4 of4

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