On July 8, 2024, Judge Patel of the New York County Commercial Division issued a decision in Charlier v. Agri-Fintech Holdings, Inc., 2024 NY Slip Op. 32645(U), denying a motion for default judgment for failure properly to serve the motion, explaining:
Default judgment is appropriate where, as here, a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him. CPLR § 3215(f) requires that the movant seeking default judgment file: (1) proof of service of the summons and complaint or, alternatively, notice pursuant to CPLR § 305(b); (2) proof of the claim(s) along with any amount due; and (3) proof of default. Further, when 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. The statutory requirements established in the CPLR are intended to protect defendants and, thus, the burden of proving compliance with the statutes rest with the plaintiff.
Plaintiff’s motion is deficient in at least two respects. First, Plaintiff failed to provide proof of service of the instant motion. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Meanwhile, CPLR § 2103 requires service of interlocutory papers upon the opposition’s attorney, or, when the party has not appeared in the action, upon the party directly. Further, CPLR § 306(d) requires evidence of service to be filed either (1) by certificate – if the server is a sheriff or other authorized public officer, – or (2) by affidavit of service. Proof of service shall specify the papers served, the person who was served and the date, time, address, or, in the event there is no address, place and manner of service, and set forth facts showing that the service was made by an authorized person and in an authorized manner. CPLR § 306(a). The failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion.
Here, Plaintiff’s affidavits of service only reference service of the: (1) Plaintiff’s Summons; (2) Plaintiff’s Request for Judicial Intervention; and (3) Plaintiff’s Commercial Division Addendum. Plaintiff’s affidavits of service do not identify service of the Complaint or of the present motion papers. Indeed, Plaintiff has not presented any evidence corroborating service of the motion papers upon Defendant Mmobuosi and/or the remaining Defendants. The Court cannot presume service of the papers on Defendant Mmobuosi without evidence of such. Accordingly, the Court must assume that the present motion papers were not served on Defendant Mmobuosi.
Second, Plaintiff failed to provide the Court with evidence of required additional notice pursuant to CPLR § 3215(g)(3)(i). If a party is owed additional notice, failure to provide evidence of such service requires denial of the default judgment motion. Here, Plaintiff’s claims arise out of an employment contract by and between the parties herein.
Furthermore, Plaintiff is seeking default against Defendant Mmobuosi, a natural person. However, Plaintiff has not provided this Court with any evidence that any additional notice has been provided to Defendant Mmobuosi, as is required by CPLR § 3215(g)(3)(i). As noted, supra, Plaintiff’s affidavits of service do not reference service or mailing of the additional required notice. Accordingly, Plaintiff has failed to meet his burden as to the required additional notice, barring an entry of a default judgement.
(Internal quotations and citations omitted).