Plaintiff Lonzenia Guillot moves, pursuant to CPLR §3215, for a default judgment against defendant REALTY OF ADIR LLC for defendant's failure to answer the Summons and Complaint.

This is an action to recover damages for personal injuries which plaintiff sustained on February 13, 2008 as a result of a slip and fall at a premises located at 835 Dekalb Avenue, County of Kings, City and State of New York. The slip and fall was the result of an alleged wet and slippery condition on the floor near the counter. There were allegedly no caution or warning signs. Following the incident, Lonzenia Guillot went to Interfaith Medical Center where she was treated for injuries to her neck, back and knees. She then followed up her treatment and care with Dr. Scott Leist. On September 22, 2008, plaintiff commenced the action by serving and filing the summons and complaint.

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, then the appearance shall be made within thirty days after service is complete. REALTY OF ADIR LLC has not answered the summons and complaint nor has defendant made a motion to extend time to answer.CPLR §3215 (f) states in pertinent part that on any application for judgment by default, the application shall file proof of service of the summons and complaint.

When a plaintiff seeks default judgment, the burden is on the plaintiff to prove they properly served the defendant with the summons and complaint. Pursuant to CPLR §306, the general rule to prove service is to "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. Whenever service is made pursuant to this article by delivery of the summons to an individual, proof of service shall also include, in addition to any other requirement, a description of the person to whom it was so delivered, including, but not limited to, sex, color of skin, hair color, approximate age, approximate weight and height, and other identifying features.

The affidavit of service is dated October 14th, 2008 and states that Maria Schmitz served the Summons and Verified Complaint upon REALTY OF ADIR LLC by personally delivering to and leaving with Carol Vogt, a white female with brown hair, brown eyes, approximately 48 years of age, 5' 0" and 125 lbs, authorized by the Secretary of State to receive such service, at the office of the Department of State in the City of Albany, New York.

In this case, the plaintiff seeks an order of default from the court against defendant, REALTY OF ADIR LLC, a domestic limited liability corporation. Pursuant to LLC §301, the secretary of state shall be the agent of every domestic limited liability company that has filed with the department of state articles of organization making such designation. It also states that no domestic or foreign limited liability company may be formed or authorized to do business in this state unless its articles of organization or application for authority designates the secretary of state as such agent. Therefore, because defendant REALTY OF ADIR LLC was a limited liability company and was conducting business in the state of New York, then the secretary of state is an appropriate person to receive service as an agent.

In addition, CPLR 3215(g)(4)(i) states: when a default judgment based upon non-[*3]appearance is sought against a domestic or authorized foreign corporation which has been served pursuant to paragraph (b) of section three hundred six of the business corporation law, an affidavit shall be submitted that an additional service of summons by first class mail has been made upon the defendant corporation at its last known address at least twenty days before the entry of judgment.

CPLR §3215(g)(4ii) adds that the additional service of the summons by mail may be made simultaneously with or after the service of the summons on the defendant corporation and shall be accompanied by a notice to the corporation that service is being made or has been made pursuant to that provision. An affidavit of mailing pursuant to this paragraph shall be executed by the person mailing the summons and shall be filed with the judgment.

Exhibit D evidences plaintiff's compliance with said requirements of CPLR §3215 and thus, plaintiff has met his burden to show that a default judgment should be granted. Plaintiff is directed to settle a judgment.

The foregoing constitutes the decision and order of the court.

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J.S.C.