Hum v. Termurtoshov

Full title: SUSAN HUM, Plaintiff, v. BRUSLI TERMURTOSHOV, NEW YORK CITY TRANSIT…

Court: Supreme Court, New York County

Date published: Mar 13, 2023

2023 N.Y. Slip Op. 30730 (N.Y. Sup. Ct. 2023)

Opinion

Index No. 155411/2021 Motion Seq. No. 001

03-13-2023

SUSAN HUM, Plaintiff, v. BRUSLI TERMURTOSHOV, NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, IMPERIUM TRANS GROUP INC., Defendant.

HON DENISE M. DOMINGUEZ, J.S.C.

Unpublished Opinion

PRESENT: HON. DENISE M DOMINGUEZ PART Justice

AMENDED DECISION + ORDER ON MOTION

HON DENISE M. DOMINGUEZ, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40,41,44,45,46, 49 were read on this motion to/for JUDGMENT - DEFAULT_. The Court recalls its Decision and Order dated February 15, 2023 and amends the decision as follows.

Upon reading the above listed documents, Plaintiffs motion for default judgment pursuant to CPLR 3215 is denied with leave to renew in part and withdrawn in part and Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY'S cross-motion is withdrawn.

This personal injury matter arises out of a March 11, 2020 accident at the intersection of Ann Street and William Street in Manhattan. On June 4,2021, Plaintiff commenced this negligence action against the Defendants. Plaintiffs motion shows that Defendant METROPOLITAN TRANSPORTATION AUTHORITY was served with the Complaint via email to vclement@mtahq.org on June 15, 2021. Plaintiff shows that Defendant NEW YORK CITY TRANSIT AUTHORITY was personally served on June 17, 2021. Plaintiff also shows that Defendant BRUSLI TERMURTOSHOV was served via his attorney on June 22, 2021. Plaintiff asserts that service was effectuated on IMPERIUM TRANS GROUP INC. by serving a mechanic for IMPERIUM TRANS GROUP INC. at 2307 McDonald Avenue, Brooklyn, NY on June 22, 2021.

On July 12, 20121, Defendant BRUSLI TERMURTOSHOV joined issue by service of an answer to the Plaintiffs complaint.

As an answer was not served by the remaining Defendants, Plaintiff then filed with within motion seeking default judgment against Defendants NEW YORK CITY TRANSIT AUTHORIT, METROPOLITAN TRANSPORTATION AUTHORITY and IMPERIUM TRANS GROUP INC. on March 23,2022.

On May 10, 2022 an answer was filed on behalf of Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY. A cross motion was then filed seeking to compel the Plaintiff to accept the answer of Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY.

While the motion and cross-motion were pending, the parties, except for Defendant IMPERIUM TRANS GROUP INC., entered into a stipulation whereby the Plaintiffs default motion was withdrawn against Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY only, and whereby Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY'S cross-motion to compel the Plaintiff to accept their answer was withdrawn (NYSCEF Doc #44,45). Accordingly, that aspect of the motion seeking a default judgment against Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY is withdrawn and the Defendant's cross-motion to compel the Plaintiff to accept their answer is also withdrawn.

With respect to the motion for default judgment against Defendant IMPERIUM TRANS GROUP INC., upon review, Plaintiff has not met her burden in establishing her right to a default judgment.

Pursuant to CPLR §3215(f), to prevail in a motion for default judgment, the plaintiff must provide "...proof of service of the summons and the complaint... proof of the facts constituting the claim, the default and the amount due." (CPLR §3215(f)).

Plaintiffs evidence of her purported service of the summons and complaint on Defendant IMPERIUM TRANS GROUP INC. does not show proper service. Service upon a corporation is controlled by CPLR §311. As per CPLR §311 (a)(1) "[p]ersonal service upon a corporation... shall be made by delivering the summons... to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. A business corporation may also be served pursuant to section three hundred six or three hundred seven of the business corporation law...." (See CPLR §311 (a)(1)).

Here, it appears that Plaintiff attempted to effectuate service of the summons and complaint on Defendant IMPERIUM TRANS GROUP INC., on June 22, 2021. The affidavit of service reflects an address of 2167 East 21^st Street, Brooklyn, New York for Defendant IMPERIUM TRANS GROUP INC. (NYSCEF Doc. #15). However, the summons and complaint were served on an individual, a Mr. Mura, who was identified as a mechanic of IMPERIUM TRANS GROUP INC. at the address of 2307 McDonald Avenue, Brooklyn, New York.

Regardless of which address(es) maybe the business address for IMPERIUM TRANS GROUP INC., there is no evidence establishing that Mr. Mura, an apparent mechanic for IMPERIUM TRANS GROUP INC., was authorized to accept service of process on behalf of IMPERIUM TRANS GROUP INC. (See CPLR §311). Plaintiff does not offer any evidence showing that Mr. Mura, is a corporate representative such as an officer, director, cashier or other qualified individual who is authorized to accept service of process. There is no evidence that Mr. Mura claimed to be authorized to accept service of process on IMPERIUM TRANS GROUP INC.'s behalf, nor is there any evidence at IMPERIUM TRANS GROUP INC., was resisting or refusing service. (See Martinez v. Church of St. Gregory, 261 A.D.2d 179, 180, 690 N.Y.S.2d 29, 29 [1^st Dept 1999] cf. Beras v. Alan Rena Realty Corp.. 190 A.D.3d 478, 479, 135 N.Y.S.3d 653 [1^st Dept 2021]). Moreover, it does not matter if Mr. Mura ultimately delivered the summons and complaint to IMPERIUM TRANS GROUP INC. (See Martinez 261 A.D.2d at 180). Finally, a review of court filings available on NYSCEF does not show that service of the summons and complaint was also attempted on IMPERIUM TRANS GROUP INC. via the New York State Secretary of State as per N.Y. Bus. Corp. Law § 306.

Accordingly, Plaintiff has not met her burden in establishing a right to default judgment against Defendant IMPERIUM TRANS GROUP INC. as there is no showing that the summons and compliant were properly served on IMPERIUM TRANS GROUP INC. pursuant to CPLR §311 (a)(1).

It is hereby

ORDERED that the Plaintiffs motion for default judgment against Defendant BRUSLI TERMURTOSHOV is denied with leave to renew; and it is further

ORDERED that the Plaintiffs' motion for default judgment against Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY is withdrawn; and it is further

ORDERED that Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY cross-motion to compel the Plaintiff to accept their answer is withdrawn.