20 W. 47 St. Assoc., LLC v. Rafaello & Co.

2024 NY Slip Op 31555(U)

• Court: New York Supreme Court, New York County
• Decided: May 1, 2024
• Status: Unpublished

Opinion

20 W. 47 St. Assoc., LLC v Rafaello & Co. 2024 NY Slip Op 31555(U) May 1, 2024 Supreme Court, New York County Docket Number: Index No. 652338/2022 Judge: Emily Morales-Minerva Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 652338/2022 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 05/01/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice ----------~--------.X INDEX NO. 652338/2022 20 WEST 47 STREET ASSOCIATES, LLC, MOTION DATE 03/05/2024 Plaintiff, MOTION SEQ. NO. 002 -v- RAFAELLO & COMPANY, A & A DIAMONDS, LTD., DECISION + ORDER ON RAFAELKHAYARANBAYEV, YAAKOV NEKTALOV MOTION Defendant.

-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 46, 47, 48, 49, 50, 51,52,53,54,55,56,57,58,59,60 were read on this motion to/for JUDGMENT - DEFAULT

HON. EMILY MORALES-MINERVA:

In this breach of contract action, 20 WEST 47 STREET

ASSOCIATES, LLC ("plaintiff") moves, by notice of motion, dated

March 1, 2024, for leave to enter a default judgment against

RAFAELLO & COMPANY and A & A DIAMONDS, LTD., (collectively

"corporate defendants") and RAFAELKHAY ARANBAYEV and YAAKOV

NEKTALOV (collectively "individual defendants") in the amount of

$203,961.01. 1 The defendants listed herein have not appeared in

this action and submit no opposition.

For the reasons set forth below, the court denies the

motion for lack of proper service on all defendants.

1 The Court notes that the original summons with notice requested $202,952.36 ~ NYSCEF # 1)

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BACKGROUND

By notice of motion (sequence number 001), dated January 3,

2023, plaintiff moved, pursuant to CPLR 3215, for an order

granting it a default judgment against defendants. The Court (N.

Bannon, J.S.C.) denied said motion without prejudice to renewal

within 30 days of its Decision and Order, dated February 7,

2023. In denying the application, the Court reasoned that

plaintiffs failed submit sufficient proof of the facts

constituting the claim see Decision and Order, dated February

7, 2023 [N. Bannon, J.S.C.], para 4, citing CPLR 3215[f]). The

same Decision and Order did not address whether plaintiff

properly served defendants. Instead, the court {N. Bannon,

J.S.C.) provided that "even assuming the that the plaintiff

has submitted proof of service of the summons and complaint and

proof of the defendants' default" - plaintiff's application

failed in setting forth a prima facie case of a breach of

contract claim.

Within 30 days of the denial of its initial motion,

plaintiffs filed an "amended" notice of motion on March 6, 2023.

The Court (N. Bannon J.S.C.) denied the application as the

"amended" motion was improperly filed under motion sequence

number 001, rather than under motion sequence 002 (see Decision

and Order, dated February 8, 2024 [N. Bannon J.S.C.]).

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Within 30 days of the denial of plaintiffs second

application to the court, plaintiff filed the instant motion

(motion sequence 002), seeking an order granting them a default

judgment. No defendants have appeared or submitted any

opposition to the subject application.

ANALYSIS

A proponent for a default judgment must provide proof of

service of the summons and complaint, proof of the facts

constituting the claim, and proof of the default (CPLR 3215 [f];

see also Gordon Law Firm, P.C. v Premier DNA Corp., 205 AD3d

416, 416 [1st Dept 2022]). A court lacks personal jurisdiction

over a defendant who is not properly served with process (see

Nationstar Mtge., LLC v.·Esdelle, 186 A.D.3d 1384, 1386 [2d Dept

2020]. Furthermore, the movant must comply with the additional

mailing requirements, as articulated in CPLR § 3215(g) . 2

2 CPLR 3215[g][3][i] provides, in pertinent part, that "[w]hen a default judgment based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry of such judgment, by mailing a copy of the summons by first-class mail to the defendant at his [or her] place of residence." CPLR 3215[g][4][i] provides, in pertinent part, that when a default judgment is sought against a corporation that has been served by service upon the Secretary of State (see Business Corporation Law § 306[b]), the plaintiff must mail an additional copy of the summons and complaint to the corporation "via first class mail" at its "last known address." 652338/2022 20 WEST 47 STREET ASSOCIATES, LLC vs. RAFAELLO & COMPANY ET AL Page 3 of 9 Motion No. 002

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INDIVIDUAL DEFENDANTS

In support of its motion for a default against individual

defendants Rafaelkhay Aranbayev and Yaakov Nektalov, plaintiff

submits affidavits of service of its process server Michael

Gorman see exhibit G and H). Therein, the process server

affirms that they executed service through "substitute service,"

pursuant to CPLR § 308(2), on both individual defendants on

September 1, 2022 at 12:33pm. The affidavit indicates that

"Danny 'Doe'" was served, that he is a person of suitable age

and discretion, and that he is "authorized to accept." A

physical description of "Danny 'Doe'" is also provided, notably

"Danny 'Doe'" being listed as 21 years old, but their

relationship to both individual defendants is left blank (see

exhibit G and H).

Service of process upon a natural person must be made in

strict compliance with the methods of service set .forth in CPLR

§ 308 (see Dorfman v Leidner, 76 NY2d 956 [1990]). Service of

process under CPLR § 308(2), which is at issue here, requires

that the summons be delivered within the state to a person of

· suitable age and discretion at the defendant's "actual place of

business, dwelling place or usual place of abode," along with a

mailing of the summons to the defendant's last known residence

or actual place of business. Personal jurisdiction is not

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acquired absent strict compliance with both the delivery and

mailing requirements of CPLR § 308(2) (see Williams v MTA Bus

Co., 2024 N.Y. Slip Op. 00692 [1st Dept 2024].

Moreover, where, as here, plaintiffs seek a default against

a natural person based on nonappearance, plaintiffs shall submit

"an affidavit that additional notice has been given by or on

behalf of the plaintiff[s] at least twenty days before the entry

of such judgment, by mailing a copy of the summons by first-

class mail to the defendant at [their] place of residence in an

envelope bearing the legend 'personal and confidential' and not

indicating on the outside of the envelope that the communication

is from an attorney or concerns an alleged debt" (see CPLR

§ 3215 [g] [3] [i]).

The court must find that plaintiff failed to submit

requisite proof of additional mailing pursuant to CPLR

§ 3215[g] [3] [i]. Here, the affidavit of additional service on

March 15, 2024, was delivered "via Regular mail," and it did not

indicate the envelope bared the legend "personal and

confidential" and not indicating on the outside of the envelope

that the communication is from an attorney of concerns an

alleged debt see NYSCEF #60).

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CORPORATE DEFENDANTS

In support of its motion for a default against corporate

defendants Rafello & Company and A & A Diamonds, LTD, plaintiff

submits affidavits of service attempting to effectuate service

on the corporate defendants through two separate methods:

(1) personal service see exhibit D and E), and (2) service via

the Secretary of State see exhibit C and F). The court finds

that service on corporate defendants in this matter is

insufficient.

CPLR § 31l(a) (1) provides that, personal 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." Additionally, CPLR

3ll(a) (1) provides that a plaintiff may serve a business

corporation pursuant to Business Corporation Law§ 306.

Business Corporation Law§ 306{b) (1) permits service of

process on the Secretary of state as agent of a domestic or

authorized foreign corporation. However, if service is

effectuated pursuant to Business Corporation Law§ 306,

additional service of the summons by first-class mail on the

non-appearing corporation is required {see CPLR 3215[g] [4]).

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In plaintiff's affidavit of service on both corporate

defendants, the process server describes serving "Danny 'Doe'"

on September 1, 2022 at 12:33pm at 41 West 47th Street, New

York, NY 10036. Both affidavits of service describe "Danny

'Doe'" as a "party authorized to accept." "Danny 'Doe's'"

relationship to both corporations is left blank.

The affidavits of service make no representation as to

whether "Danny 'Doe"' is an officer, director, managing agent,

or cashier of the corporation. Further, there is no showing that

"Danny 'Doe'" had the power to act on behalf of the corporation

in its business dealings or that they carried with them the

discretion to act on behalf of the corporation.

Indeed, plaintiff submits no evidence of any inquiry made

as to the recipients authority to receive process on behalf of

both corporate defendants (see also Arvanitis v Bankers Tr. Co.,

286 AD2d 273 [1st Dept 2001] .[the ~ourt will look to a process

server's reasonable belief as to whether a recipient of process

carried authority to receive process on behalf of another]; see

also Colbert v Intl. Sec. Bur., Inc., 79 A.D.2d 448 [2d Dept

1981] [providing that merely calling someone a "office manager"

does not make someone a "managing agent" within the meaning of

the statute]. Therefore, the court must find that service

pursuant to CPLR 311(a) is insufficient.

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Plaintiff's affidavits of service, pursuant to Business

Corporation Law§ 306, indicates service on the Secretary of

State on November 7, 2022, at 3:15pm. However, plaintiff failed

to demonstrate additional service on the corporate defendants,

as CPLR 3215 [g] [4] requires. Here, the affidavit of

additional service provides the process server mailed the papers

on March 15, 2024 "via Regular mail," and made no indication to

defendants that service was "being made or has been made,"

pursuant to Business Corporation Law§ 306 see CPLR

3215 [g] [4] [ii]}.

As such, the plaintiff's motion for default judgment

against the corporate defendants RAFAELLO & COMPANY and A & A

DIAMONDS, LTD is denied. Since the defects can be cured, denial

of the motion is without prejudice to renewal on proper papers

within 30 days of the date of this order.

Accordingly, it is

ORDERED that the plaintiff's motion pursuant to CPLR 3215

for leave to enter a default judgment is denied without

prejudice.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

5/01/2024 DATE

□ NON-F CHECK ONE:

APPLICATION: § CASE DISPOSED GRANTED

SETTLE ORDER 0 DENIED DISPOSITION GRANTED IN PART SUBMIT ORDER □ OTHER

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