Commercial Division Blog

Posted: June 16, 2023 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Default Judgment, Commercial

Motion for Default Judgment Based on “Nail and Mail” Service Denied For Failure to Complete “Due Diligence”

In a Decision and Order, dated May 19, 2023, in McGuigan v. Gendell, Index No. 650294/2021, Justice Joel M. Cohen denied plaintiffs’ motion for a default judgment finding that plaintiffs did not sustain their burden to establish proper service under CPLR 3215(f). The Court explained:

CPLR 3215(f) requires that a motion for a default judgment must be supported by "proof of the service of the summons and complaint" (Gordon Law Firm, P.C. v Premier DNA Corp., 205 AD3d 416, 417, 165 N.Y.S.3d 691 [1st Dept 2022]). The "plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made" Persaud v Teaneck Nursing Ctr., Inc, 290 AD2d 350, 351, 736 N.Y.S.2d 367 [1st Dept 2002] [citations omitted]). Generally, "to successfully oppose a default judgment, a defendant must demonstrate a justifiable excuse for his default and a meritorious defense" (ICBC Broadcast Holdings-NY, Inc. v Prime Time Adv., Inc., 26 AD3d 239, 240, 810 N.Y.S.2d 40 [1st Dept 2006] [citations omitted]). However, "the usual requirement of a pleading to establish a meritorious defense is obviated where the defense is a lack of personal jurisdiction" (Id. [citations omitted]).

A party may resort to "nail and mail" service under CPLR 308(4) only after engaging in "due diligence" to complete service under CPLR 308(1) and (2) (Estate of Waterman v Jones, 46 AD3d 63, 66, 843 N.Y.S.2d 462 [2d Dept 2007] [collecting cases]). Service is effective under Section 308(4) only if affixed to the defendant's "actual dwelling place or usual place of abode" while the statutorily required mailing may be made to the defendant's "last known residence" (Feinstein v Bergner, 48 NY2d 234, 241, 397 N.E.2d 1161, 422 N.Y.S.2d 356 [1979]). Accordingly, where a defendant moved "almost a year before service was attempted," a motion for a default judgment was denied for failure to complete "due diligence" (Roc-Lafayette Assoc., LLC v Reuter, 183 A.D.3d 465, 466, 121 N.Y.S.3d 854 [1st Dept 2020] citing id.).

Plaintiffs Affidavit of Service is defective because it does not establish (1) that any due diligence was undertaken to determine Gendell's actual residence; (2) that service was made at Gendell's actual residence; or (3) that the required mailing was made. Accordingly, Plaintiffs have not sustained their burden to establish proper service under CPLR 3215(f) (Petre v Lucia, 205 AD3d 438, 438, 168 N.Y.S.3d 42 [1st Dept 2022]). Therefore, Gendell need not demonstrate a meritorious defense to avoid a default (ICBC Broadcast Holdings-NY, Inc., supra). Even if the Affidavit of Service was not defective, the Court finds that Gendell's Affidavit is sufficient to rebut Plaintiffs' assertion that proper service was made (Persaud, supra at 350-351; Italian Elegant Jewelry, LLC v Fteha, 206 AD3d 493, 171 N.Y.S.3d 65 [1st Dept 2022]).

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