We reject plaintiff's argument because the January 11, 2007 "Affirmation of Service" on which she relies as proof of the alleged January 10, 2006 service of the January 10, 2007 motion to reargue is defective. That affirmation states that "I caused a copy of plaintiff's motion for leave to reargue to be sent by first class mail to [defendant's attorney] at the following address." Such affirmation is defective because it does not specifically state that the affiant, who is plaintiff's attorney, himself mailed the motion ( Metzger v Esseks, 168 AD2d 287, 287; Gigante v Arbucci, 34 AD3d 425, 425). Plaintiff's argument that defendant's original motion to vacate its default in appearance should have been denied for lack of a reasonable excuse and meritorious defense is not properly before the Court since plaintiff did not appeal the December 5, 2006 order; in any event, it appears that the default was properly vacated.
The defendant contends that the plaintiffs could not amend their summons and complaint without leave of court because they failed to do so within 20 days after the answer was allegedly served on February 28, 2005 ( see CPLR 3025 [a]). However, the affirmation of the defendant's attorney was insufficient to establish that the answer was served on February 28, 2005 as it did not specifically state that the affiant himself served the answer, nor did it describe the method used to effectuate service in a manner specified by CPLR 2103 (b) ( see Metzger v Esseks, 168 AD2d 287; Coonradt v Averill Park Cent. School Dist., 73 AD2d 747). Since the defendant failed to establish that the plaintiffs' time to amend their pleadings as of right commenced on February 28, 2005 the Supreme Court properly denied that branch of the defendant's motion which was to strike the amended summons and complaint.
Here plaintiff's submissions do not include an adequate affidavit of mailing of the motion upon defendants ( CPLR 2103[c] ). Plaintiff has failed to satisfy the requirements of CPLR 2103(c) as there is no proof of mailing in accordance with CPLR 2103(f)(1) (see Metzger v. Esseks, 168 A.D.2d 287 [2d Dept1990] ; Heffernan v. Village of Munsey Park, 133 A.D.2d 139 [2d Dept 1987] ; Vivienne Etienne Medical Care, P.C. v. County-wide Ins. Co., 114 AD3d 33, 47 [2d Dept 2013]. However, even if plaintiff had submitted sufficient proof of mailing in accordance with CPLR 2103 the court would have denied the motion.
Here plaintiff's submissions do not include an adequate affidavit of mailing of the motion upon defendants (CPLR 2103[c]). Plaintiff has failed to satisfy the requirements of CPLR 2103 (c) as there is no proof of mailing in accordance with CPLR 2103(f) (1) (see Metzger v. Esseks, 168 AD2d 287 [2d Dept1990]; Heffernan v. Village of Munsey Park, 133 AD2d 139 [2d Dept 1987]; Vivienne Etienne Medical Care, P.C. v. County-wide Ins. Co., 114 AD3d 33, 47 [2d Dept 2013]. However, even if plaintiff had submitted sufficient proof of mailing in accordance with CPLR 2103 the court would have denied the motion.
. “affidavit of service ... insufficient in that it did not specifically state that the employee herself mailed the letter ... and did not recite that the letter was mailed to the plaintiff's attorneys at their designated address in a manner specified by the statute” Metzger v. Esseks, 168 A.D.2d 287 (1st Dept, [1990] ).
Under these circumstances, the Citywide Grievance may not be deemed served upon the DOE on or about December 11, 2009. Peter-MacIntyre v Lynch Intl., Inc., 52 AD3d 424, 425 (1st Dept 2008) ("the January 11, 2007 'Affirmation of Service' . . . is defective because it does not specifically state that the affiant, who is plaintiff's attorney, himself mailed the motion"); Metzger v Esseks, 168 AD2d 287, 287 (1st Dept 1990) ("the affidavit of service by defendants' attorney's employee . . . , dated November 3, 1989, [is] insufficient in that it does not specifically state that the affiant herself mailed the letter enclosing the motion papers").
Under these circumstances, the Citywide Grievance may not be deemed served upon the DOE on or about December 11, 2009. Peter-MacIntyre v Lynch Intl., Inc., 52 AD3d 424, 425 (1st Dept 2008) ("the January 11, 2007 'Affirmation of Service' . . . is defective because it does not specifically state that the affiant, who is plaintiff's attorney, himself mailed the motion"); Metzger v Esseks, 168 AD2d 287, 287 (1st Dept 1990) ("the affidavit of service by defendants' attorney's employee . . ., dated November 3, 1989, [is] insufficient in that it does not specifically state that the affiant herself mailed the letter enclosing the motion papers"). Petitioner maintains that the "demands for arbitration were timely," without paying heed to Garcia's testimony.
In their reply, movants explain that "[a]ny contact with Mr. Schwartzberg to discuss his willingness to testify in Suffolk County would have been futile since Mr. Schwartzberg is the expert retained by plaintiffs and who has prepared a report for plaintiffs" (Schickler reply affirmation, ¶ 11). It would indeed have been futile, since as plaintiffs' expert Schwartzberg's convenience "is not relevant to a determination of a change of venue under CPLR 510(3)" ( Mei Ying Wu v. Waldbaum, Inc., 284 AD2d 434, 435 [2d Dept 2001]; see also Metzger v. Esseks, 168 AD2d 287 [1st Dept 1990]). No explanation is proffered for the failure to contact Schmitt, a major omission since "the witness names and description of anticipated testimony [are] insufficient . . . [when] there is no indication that the witnesses were ever contacted" ( Goldberg v. Bivins, 295 AD2d 162, 163 [1st Dept 2002]).