Opinion
5181/09.
Decided January 19, 2010.
Plaintiffs' attorney, Krinsky Musumeci, New York, NY.
Attorney for defendant Tompkins Ave. Grocery, Inc., Agulnick Gogel, LLC, New York, NY.
By notice of motion filed on October 26, 2009, plaintiffs move pursuant to CPLR § 3215 for a default judgment against defendants Kalsoom Akhtar and Farzana Rehman for their failure to appear or answer the summons and complaint.
BACKGROUND
On March 4, 2009, plaintiffs commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. Tompkins Ave. Grocery, Inc. (hereinafter TAG) has joined issue by its answer dated August 9, 2009. The action is brought by Barbara Wilson, on behalf of her infant daughter and individually for her own derivative damage. The action is to recover damages for personal injuries sustained by Melony Wilson on August 25, 2008 as a result of a slip and fall on a wet condition caused by the defendants' negligence at a grocery store located at 94 Tompkins Avenue, County of Kings, City and State of New York. TAG admits in its answer that it manages the grocery store and that Kalsoom Akhtar and Farzana Rehman own the store and the building.
SERVICE OF THE PLEADINGS
Plaintiffs believe that Kalsoom Akhtar and Farzana Rehman reside together. On March 23, 2009, plaintiffs' process server, Azzam Abderraham, signed his affidavit of service of the summons and complaint before a notary public. He alleged service of the summons and complaint upon Kalsoom Akhtar and Farzana Rehman as follows. On March 19, 20 and 21, 2009, he unsuccessfully attempted to personally deliver the papers to each defendant at a specific address in Kings county. On March 21, 2009, he affixed a copy of the summons and complaint for each defendant at the front door of the same address were he attempted personal delivery. Thereafter, on March 23, 2009, he mailed a copy of the summons and complaint to each defendant at the exact same address. On April 15, 2009, he filed his affidavits of service upon Kalsoom Akhtar and Farzana Rehman with the clerk of the court.
MOTION PAPERS
The plaintiffs motion papers consist of an affirmation of their counsel and five annexed exhibits labeled A through E. Exhibit A is Barbara Wilson's affidavit of merit. Exhibit B is a copy of the summons and verified complaint. Exhibit C is TAG's verified answer. Exhibit D is Azzam Abderraham's affidavit of service upon defendant Kalsoom Akhtar. Exhibit E is Azzam Abderraham's affidavit of service upon defendant Farzana Rehman.
LAW AND APPLICATION
CPLR § 3215(a) states, in pertinent part that when a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, the plaintiff may seek a default judgment against him. A default judgment is the result of a party failing to appear. Pursuant to CPLR § 320, a defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending time to answer.
An appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant by delivering it to an official of the state authorized to receive service in his behalf, or if it was served pursuant to section 303, subdivision two, three, four or five of section 308, or sections 313, 314 or 315, the appearance shall be made within thirty days after service is complete.
CPLR § 308 (4) provides where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing.
When a plaintiff seeks default judgment, the burden is on the plaintiff to prove they properly served the defendants with the summons and complaint. The affidavit of plaintiffs' process server demonstrates that he attempted service of the summons and complaint on both defendants pursuant to CPLR § 308(4). To successfully complete service pursuant to CPLR § 308(4), the plaintiffs were required to file each of the affidavit of service by no later than twenty days of either delivery or mailing, whichever was effected later. The mailing date was March 23, 2009 and twenty days after that date is April 12, 2009. However, April 12, 2009 fell on a Sunday making April 13, 2009, the latest date the filing had to occur ( see, Foster v. Thurber, 76 N.Y.S.2d 616 [NY Sup. 1947] and General Construction Law § 20). Plaintiffs filed the affidavits of service on April 15, 2009, two days late.
While the failure to file a timely proof of service is a curable procedural irregularity, the plaintiffs did not obtain an order permitting a late filing of proof of service, and thus, plaintiffs' late filings were nullities ( see, Zareef v. Lin Wood, 61 AD3d 749 [2nd Dept., 2009]). Therefore, the defendants' time to answer never began to run and they never defaulted ( Id.) Plaintiffs' motion for a default judgment against Kalsoom Akhtar and Farzana Rehman is denied.
The foregoing constitutes the decision and order of this court.