Opinion
CV-021689/17BX
05-31-2019
LANCER INSURANCE COMPANY a/s/o South Bay Trucking Company, Plaintiff v. PK TRUCKING and Kulbir S. Harr, Defendants.
Plaintiff: Law Offices of Carman, Callahan & Ingham, LLP 266 Main Street Farmingdale, New York 11735 Defendants: [no appearance and no opposition filed] PK Trucking Kulbir S. Harr 741 Morris Court Florence, New Jersey 08518
Plaintiff:
Law Offices of Carman, Callahan & Ingham, LLP
266 Main Street
Farmingdale, New York 11735
Defendants: [no appearance and no opposition filed]
PK Trucking
Kulbir S. Harr
741 Morris Court
Florence, New Jersey 08518
Myrna Socorro, J.
Recitation as required by CPLR § 2219[a] of the papers considered in the review of plaintiff's motion for entry of default judgment pursuant to CPLR § 3215 :
Papers Numbered
Plaintiff's Notice of Motion for Entry of Default Judgment Pursuant to CPLR § 3215 1
Upon the foregoing cited papers, plaintiff's motion for entry of default judgment pursuant to CPLR § 3215 is DENIED for the reasons set forth herein:
Procedural Background
The above mentioned case is an action seeking to recover $2,972.08 in property damages arising from a motor vehicle accident that occurred on or about December 22, 2015. Plaintiff as subrogee of South Bay Trucking Company, commenced the action by filing a summons and complaint on December 21, 2017, against the defendants, PK Trucking and Kulbir S. Harr. The official court file contains an original copy of a sworn affidavit of service on PK Trucking, which states that on January 8, 2017 , the summons and complaint was delivered to defendant's authorized designated agent under the Secretary of State and on January 25, 2018, a true copy of the same was sent by certified mail. The court file also contains an original copy of a sworn affidavit of service on Kulbir S. Harr, which states that on January 8, 2017 , the summons and complaint was served on this defendant by delivery to the authorized designated agent under the Secretary of State and on January 25, 2018, the summons and complaint was sent to defendant Harr by certified mail.
The affidavit of service filed with the court indicates that the summons and complaint was served upon defendant, PK Trucking on January 8, 2017. This appears to be a typographical error and should have stated January 8, 2018 as the summons and complaint was filed on December 21, 2017 and would have been served after December 21, 2017.
Id.
On March 20, 2019, plaintiff filed a Notice of Motion for an Order, pursuant to CPLR § 3215[a], to enter judgment against the defendants, PK Trucking and Kulbir S. Harr, as plaintiff contends that the defendants have failed to answer the summons and complaint. On the return date of the motion, April 4, 2019, the defendants did not appear on the instant matter nor did defendants file any opposition, and the plaintiff's motion was marked "submitted" for decision.
Discussion
Default Judgment Under CPLR § 3215
The plaintiff has failed to comply with CPLR § 3215 for entry of default judgment. Pursuant to CPLR § 3215[a], "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." Furthermore, CPLR § 3215[c] states in pertinent part that, "if the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned...upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." On a motion for default judgment, "the applicant shall file proof of service of the summons and complaint, proof of the facts constituting the claim, the default and the amount due by affidavit made by the party." See CPLR § 3215[f]. "This statute is strictly construed, as the [t]he language of CPLR § 3215[c] is not, in the first instance, discretionary but mandatory, inasmuch as courts shall dismiss claims for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned." Karamuco v. Gavriel Plaza, Inc . 2019 NY Slip Op. 03577 [2d Dept 2019]. As to whether an excuse is reasonable, that determination is committed to the sound discretion of the motion court. Id. , citing , Bank of NY Mellon v. Izmirligil , 144 AD3d 1067, 1069 [2d Dept 2016], Baruch v. Nassau County , 134 AD3d 658, 659 [2d Dept 2015]. While it has been held that "law office failure, may be accepted as a reasonable excuse for a delay in taking action, law office failure should not be excused...where allegations of law office failure are conclusory and unsubstantiated." Pipinias v. J. Sackaris & Sons, Inc. 116 AD3d 749, 752 [2d Dept 2014], citing , Wells Fargo Bank, N.A. v. Cervini , 84 AD3d 789, 790 [2d Dept 2011].
Here, defendants have failed to answer the summons and complaint or appear on this motion, as such, plaintiff seeks a default judgment against the defendant. However, the plaintiff failed to move for the default judgment within the one year period set forth by statute. Plaintiff contends in its motion that it has a reasonable excuse for the delay and as such should be granted the default judgment. They further contend that the delay was caused due to law office failure in that the matter was not properly entered into the system for a motion. However, plaintiff's arguments in support of default judgment fails on both procedural and substantive grounds. Plaintiff's contention of law office failure and improper entry is conclusory and unsubstantiated and accordingly, plaintiff's motion for late entry of default judgment is DENIED . Further, based on the documents submitted by plaintiff, the Court lacks personal jurisdiction over the defendants.
Service of Summons on Non-Residents
In order to effectuate proper service of a summons and complaint to a non-resident party as related to motor vehicle accidents, the plaintiff must comply with the requirements set forth by New York State Vehicle and Traffic Law § 253[1] which states in pertinent part:
"the use or operation by a non-resident of a vehicle in this state, or the use or operation in this state of a vehicle in the business of a non-resident, or the use or operation in this state of a vehicle owned by a non-resident if so used or operated with his permission, express or implied, shall be deemed equivalent to an appointment by such non-resident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such non-resident may be involved while using or operating such vehicle in this state or in which such vehicle may involved while being used or operated in this state in the business of such non-resident..."
Furthermore, VTL § 253[2], states in pertinent part,
"A summons in an action described in this section described in this section may issue in any court in the state having jurisdiction of the subject matter and be served as hereinafter provided."
"Service of summons shall be made by, [1] mailing a copy to the secretary of state at this office in the city of Albany, or by personally delivering a copy thereof to one of his regularly established offices, with a fee of ten dollars and; [2] such service shall be sufficient service upon such non-resident provided that notice of such service and a copy of the summons and complaint are forthwith sent by or on behalf of the plaintiff to the defendant by certified mail or registered mail with return receipt requested and; [3] plaintiff shall file with the clerk of the court in which the action is pending...an affidavit of compliance, a copy of the summons and complaint, and either a return receipt purporting to be signed by the defendant or a person qualified to receive his certified mail or registered mail." [emphasis added].
Notwithstanding the defendants' default on this motion, the Court is required to examine whether service of the summons and complaint on defendants comport with VTL § 253[2]. The Court finds that service of process was defective in this case. See Cummins-Allison Corp. v. Bargarnik , 146 Misc 2d 1042 [Civ Ct, Kings County 1990] [in an action commenced against a New Jersey resident under the service provisions of VTL 253, where defendant failed to respond to service of process and plaintiff filed a motion for default judgment and defendant never responded, the court found that upon examination of the statute, service was improper, therefore there was no jurisdiction over defendant ]. Upon a review of the documents in the court file, plaintiff served defendants with the summons and complaint by serving a copy of the summons and complaint on to the New York Secretary of State with the ten dollar fee [satisfying the first prong] and mailing of the same by certified mail, as evidenced by the certified mail receipts attached to the affidavits of service [satisfying the second prong]. However, plaintiff has failed to comply with the third prong of VTL § 253[2] ; i.e. filing of an Affidavit of Compliance with a copy of the summons and complaint and return receipt card . [emphasis added]. The enclosed mailing notifications to the Secretary of State coupled with the signed green certified mail receipts with a signature purporting to be signed by the defendants, still does not confer jurisdiction over the defendant as plaintiff failed to include an affidavit of compliance with the clerk of the court. See Braderman v. Keitz , 13 AD3d 205, 206 [1st Dept 2004] [plaintiff's failure to comply with the service and filing requirements of VTL 253[2], by failing to file an affidavit showing posting by regular mail and proof of such mail, rendered service defective, as such jurisdiction was not obtained over the defendant-appellant, a Pennsylvania resident ]; but see Spath v. Zack , 36 AD3d 410, 412 [1st Dept 2007] [motion to dismiss denied whether service was found proper where plaintiff served the Secretary of State, mailed the summons and complaint to the defendant and filed an affidavit of compliance with the return receipt ]. An affidavit is a written signed statement, under oath, before a notary public. See CPLR§ 3021, stating in pertinent part, "the affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes to be true ." The document presented by plaintiff is titled a "mailing notification," it is not signed nor notarized, and the summons and complaint is not attached, as is required under VTL § 253[2]. Accordingly, in light of plaintiff's failure with the strict compliance of VTL § 253[2], by not filing a proper affidavit of compliance, the Court finds that there is no jurisdiction over the defendants.
In conclusion, as plaintiff has failed to meet the requirements set forth under VTL § 253[2], and as plaintiff's request for late entry of default judgment failed on procedural and substantive grounds, the plaintiff's motion for entry of default judgment against the defendants is DENIED .
The foregoing shall constitute the Decision and Order of the Court.