Devda v. Pratik News Stands Corp.

2024 NY Slip Op 31184(U)

• Court: New York Supreme Court, New York County
• Decided: April 8, 2024
• Status: Unpublished

Opinion

Devda v Pratik News Stands Corp. 2024 NY Slip Op 31184(U) April 8, 2024 Supreme Court, New York County Docket Number: Index No. 152479/2022 Judge: Judy H. Kim 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. [FILED: NEW YORK COUNTY CLERK 04/08/2024 04:26 P~ INDEX NO. 152479/2022 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/08/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 152479/2022 DHARMPALSINH G. DEVDA, MOTION DATE 07/12/2023 Plaintiff, MOTION SEQ. NO. 001 - V -

PRATIK NEWS STANDS CORPORATION, JAYASHRI B. PATEL, KAMLESHBAI PATEL, BABU PATEL, YASSER DECISION + ORDER ON KASIM, MOTION

Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number(Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 were read on this motion to/for JUDGMENT - DEFAULT

Upon the foregoing documents, the motion by plaintiff for a default judgment against the

Pratik News Stands Corporation (the "Corporate Defendant") and Jayashiri B. Patel, Kamleshbai

Patel, Babu Patel and Tasser Kassim (collectively, the "Individual Defendants"), is denied for the

reasons set forth below.

Plaintiff commenced this action seeking monetary damages for unpaid wages, unpaid

overtime wages, spread of hours pay and unlawful wage deduction under applicable Labor Laws

and to recover statutory damages, attorneys' fees and costs for violations of Labor Law §§ 195(1)

and 195(3). To date, defendants have not filed Answers or appeared in this case.

DISCUSSION

Plaintiffs motion for a default judgment is denied. To establish his entitlement to a default

judgment pursuant to CPLR §3215, plaintiff is required to submit proof of: (1) proper service of

the summons and complaint; (2) the facts constituting the claim; and (3) defendants' default in

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answering or appearing (See Gordon Law Firm, P.C. v Premier DNA Corp., 165 NYS3d 691 [1st

Dept 2022]).

In this case, plaintiff has not established proof of defendants' defaults. As to the Corporate

Defendant, where, as here, service of process was effected through the New York State Secretary

of State, CPLR §3215(g)(4) mandates that plaintiff must also submit an affidavit of service

documenting an additional service of the summons to defendant's last known address by first-class

mail (See~' Sterk-Kirch v Uptown Communications & Elec. Inc., 124 AD3d 413,414 [1st Dept

2015]). There being no such additional service of the summons and complaint made at the Pratik

News Stand Corporation's last known address, a default judgment against the Corporate Defendant

is precluded.

As to the Individual Defendants, each of these defendants were served pursuant to CPLR

308(2) or (4) which require, inter alia, that "proof of such service shall be filed with the clerk of

the court designated in the summons within twenty days of either such delivery or mailing" and

that "service shall be complete ten days after such filing" (CPLR §§308[2], [4]) whereas plaintiff

filed affidavits of service on July 12, 2023, approximately one year after the follow-mailings to

each Individual Defendant on July 28, 2022. Accordingly, at the time this motion was made service

had not been completed on these Individual Defendants and therefore they have not defaulted (See

First Fed. Sav. & Loan Assn. of Charleston v Iezzi, 164 AD3d 758, 759-60 [2d Dept 2018]).

However, as the "failure to file proof of service is a procedural irregularity, not a jurisdictional

defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR

2004" (Id. [internal citations and quotations omitted]), the Court now deems the affidavit of service

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timely filed, sua sponte, pursuant to CPLR §2004, and, in the interest of justice, extends the

Individual Defendants' time to answer by an additional thirty days after service upon them of a

copy of this decision and order (Id. [internal citations omitted]).

Finally, the Court notes that plaintiff's affidavit of merit submitted in connection with this

motion appears to have been taken without the state yet fails to include a certificate of conformity

required by CPLR §2309(c).

Accordingly, it is

ORDERED that plaintiff's motion for a default judgment is denied without prejudice to

renewal thirty days after his service of this decision and order upon the Individual Defendants; and

it is further

ORDERED that, within twenty days of the date of this decision and order, plaintiff shall

serve a copy of this decision and order, with notice of entry, upon all defendants; and it is further

ORDERED that, within twenty days of the date of this decision and order, plaintiff shall

serve a copy of this decision and order, with notice of entry, upon the Clerk of the Court ( 60 Centre

Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119);

and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General

Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on

Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the

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"EFiling" page on this court's website at the address www.nycourts.gov/supctmanh).

This constitutes the decision and order of the Court.

4/8/2024 ~:;d~ DATE HON. JUDY H. KIM, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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