Opinion
2017–00242 Index No. 16698/14
05-29-2019
Lana LEWIS, et al., Appellants, v. Sanford SOLNY, et al., Respondents.
Rita Hill, Rego Park, NY, for appellants. Sanford Solny, Brooklyn, NY, respondent pro se, Avi Rosenfeld, Lawrence, NY, for respondent A to Z Management I, Inc., and Alan Wohlberg, Brooklyn, NY, for respondent Living Realty III, Inc. (one brief filed). Storch Law, P.C., Brooklyn, N.Y. (Zvi A. Storch of counsel), for respondent Brooklyn Reliable Holding, Inc.
Rita Hill, Rego Park, NY, for appellants.
Sanford Solny, Brooklyn, NY, respondent pro se, Avi Rosenfeld, Lawrence, NY, for respondent A to Z Management I, Inc., and Alan Wohlberg, Brooklyn, NY, for respondent Living Realty III, Inc. (one brief filed).
Storch Law, P.C., Brooklyn, N.Y. (Zvi A. Storch of counsel), for respondent Brooklyn Reliable Holding, Inc.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
In 2014, the plaintiffs commenced this action against, among others, the defendants Sanford Solny and Living Realty III, Inc. (hereinafter Living Realty), inter alia, pursuant to RPAPL article 15 to determine certain claims to real property. Solny and Living Realty timely answered the complaint. Thereafter, the plaintiff moved for leave to file and serve a supplemental summons and amended complaint, inter alia, so as to add A to Z Management I, Inc. (hereinafter A to Z), and Brooklyn Reliable Holding, Inc. (hereinafter Brooklyn Reliable), as additional defendants. The plaintiff's motion was granted in an order entered November 5, 2015, which stated that the plaintiffs "may, within 30 days of entry of this Order, file and thereafter serve" the supplemental summons and amended complaint. The plaintiffs did not file the supplemental summons and amended complaint until almost 30 days after the time to do so as per the order entered November 5, 2015, passed. The supplemental summons and amended complaint were thereafter served upon Solny and Living Realty by mail on January 13, 2016, and upon A to Z and Brooklyn Reliable by service upon the Secretary of State on January 27, 2016.
Subsequently, the plaintiffs moved for leave to enter a default judgment against the defendants upon their failure to appear or answer the amended complaint, for relief against the defendants pursuant to RPAPL 211, and to amend the caption to substitute Phillip J. Buzzetta as a defendant in place of "John Doe." In an order entered September 19, 2016, the Supreme Court denied the plaintiffs' motion. The plaintiffs appeal, and we affirm.
" ‘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 the claim, and proof of the defaulting party's default in answering or appearing’ " ( Dupps v. Betancourt , 99 A.D.3d 855, 855, 952 N.Y.S.2d 585, quoting Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc. , 89 A.D.3d 649, 651, 932 N.Y.S.2d 109 ; see CPLR 3215[f] ). Where the plaintiff fails to present proof of valid service of the summons and complaint, a motion for leave to enter a default judgment pursuant to CPLR 3215 is properly denied (see e.g. Daniels v. King Chicken & Stuff, Inc. , 35 A.D.3d 345, 827 N.Y.S.2d 186 ).
Here, the plaintiffs failed to meet their burden of proving valid service of the supplemental summons and amended complaint upon the defendants (see Daniels v. King Chicken & Stuff, Inc. , 35 A.D.3d 345, 827 N.Y.S.2d 186 ). The plaintiffs' submissions showed that the attempts to serve the defendants were not timely. Accordingly, we agree with the Supreme Court's determination to deny that branch of the plaintiffs' motion which was for leave to enter a default judgment against the defendants.
RPAPL 211 provides that "[i]f, during the pendency of an action to recover a judgment affecting the title to, or the possession, use or enjoyment of, real property, a party commits waste upon, or does any other damage to, the property in controversy, the court may grant ... an order restraining him from the commission of any further waste upon or damage to the property." Here, the plaintiffs failed to offer evidence that any of the defendants committed waste upon or did damage to the subject property. Accordingly, we agree with the Supreme Court's determination to deny that branch of the plaintiffs' motion which was for relief against the defendants pursuant to RPAPL 211.
The plaintiffs' remaining contentions are either improperly raised for the first time on appeal or without merit.
MASTRO, J.P., AUSTIN, MILLER and MALTESE, JJ., concur.