—[*1] Kavulich & Associates, P.C., New Rochelle (Matthew N. Kaufman of counsel), for appellant.

Rafael Lovelace, respondent pro se.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered March 30, 2009, which denied plaintiff's motion for a default judgment and sua sponte dismissed the complaint without prejudice to the commencement of a new action, unanimously affirmed, without costs.

A stipulation between the parties in another action provided that defendant's counsel in that action must be served with a summons and complaint seeking rent arrears. The motion court properly found that the stipulation was not applicable to this action; it did not waive the requirement of service on defendant and plaintiff was unable to prove service of the instant summons and complaint on defendant. The pro se defendant's opposition to the motion is construed as an application to dismiss the complaint. Concur—Mazzarelli, J.P., Sweeny, Abdus-Salaam and RomÁn, JJ.