The motion by plaintiff for a default judgment against the defendant, is denied.

Plaintiff herein seeks to collect a total of $69,651.84 plus interest from December 1, 2005 to and including August 2010 based upon defendant's alleged breach of a rental agreement for the premises located at 2334 Boston Road, Apt. 18G in Bronx County.

Plaintiff alleges that defendant breached the rental agreement by permitting rental arrears to accumulate to the sum of $69,651.84. Plaintiff annexes a copy of the purported rental agreement as well as a copy of plaintiff's rent ledger to its moving papers as Exhibits 1 and 2, respectively. Plaintiff also submits the affidavit of Tom Vataj, the managing agent for plaintiff. In his affidavit, Mr. Vataj asserts that defendant was a tenant at the subject premises until she vacated the unit on July 12, 2010. Mr. Vataj contends that defendant owed arrears for the months of December 2005 through and including August 2010 at the agreed monthly sum of $1,096.72. (Exhibit 3). The arrears accumulated to $69,651.84 plus interest and costs.

Plaintiff further asserts that it served a copy of the summons and complaint on the plaintiff but to date, defendant has failed to timely file an answer. Plaintiff submits a copy of the affidavit of service which indicates that plaintiff was served with the summons and complaint by affixing a copy to the door of her dwelling house on July 27, 2011 at 9:01 A.M. and by mailing a copy to same on July 28, 2011. The process server avers that two (2) prior attempts at service were made on July 18, 2011 at 6:02 P.M. and July 21, 2011 at 4:58 P.M. (Exhibit 6). [*2]

Additionally, pursuant to C.P.L.R. §3215(g)(3)(i), plaintiff served defendant with an additional notice of the instant action against her. Since defendant has failed to answer the complaint, plaintiff seeks to have a default judgment entered against her.

Pro se defendant opposes the motion and asserts that on July 18, 2011, July 21, 2011 and July 27, 2011, when the process server claims that attempts were made to serve her, she was at home. Defendant asserts that she is a teacher and is off during the summer. Moreover, she had relatives staying with her during those dates the process server claims that attempts were made to serve her. She admits to receiving "papers" in early December 2011 indicating that there was a "motion" against her. (Affidavit, para. 2). Defendant then appeared in court on December 15, 2011 to, "find out what I needed to do." (Affidavit, para. 2). She then requested an adjournment so that she could "confer with council [sic] and gather all documents I needed for submission." (Affidavit, para. 2).

Defendant further asserts that she filed a "rent overcharge" against plaintiff on October 13, 2005. She claims that plaintiff was directed by the Division of Housing and Community Renewal (DHCR) to "roll back rent to the legal regulated rent shown in exhibit G ($466.00)." (Affidavit, para. 2). Defendant annexes a copy of the "Order Finding Rent Overcharge (Rent Stabilized Accommodations in New York City)" (hereinafter "Order") from DHCR listing her name and address as tenant and plaintiff's name and address as owner. The Order states, in part, "Pursuant to the Rent Stabilization Code, the Rent Administrator finds that subsequent to October 13, 2001 a rent overcharge occurred as shown on the attached Rent Calculation Chart." (Exhibit A). Defendant submits further documentation showing that plaintiff continued to charge her rent at the amount of $1,000.00 even after plaintiff was advised to "roll back the rent" and, pursuant to DHCR's Rent Calculation Chart, defendant was awarded $21,979.75 on July 31, 2006.

Defendant then refers to that portion of the Order which states that if the owner does not refund defendant or file a Petition for Administrative Review (PAR) against DHCR's Order, the tenant may either, "a. Credit 20% of the overcharge (or in the event that 20% of the overcharge exceeds one month's rent, the tenant shall credit the established rent) each month until the overcharge is fully credited; or b. File and enforce this Order as a judgment." (Exhibit A, DHCR Order).

Defendant contends that the owners did not file a PAR within the requisite time period, as demonstrated by the "Notice of Rent Stabilized Tenant Concerning Payment of Penalties Which Landlord Has Been Directed to Pay By An Administrator's Order." (Exhibit B). Defendant chose to credit 20% of the overcharge from the rent until the overcharge was paid. She submits copies of receipts for rent payments made in 2005 and 2006. Additionally, defendant submits a copy of a letter she sent to plaintiff requesting a copy of her previous lease as well as a copy of the renewal lease. She claims that the letter went unanswered. She also notified the owner in writing of the of the judgment against it.

[*3]CP.L.R. §3215(f) discusses the proof that is necessary to enter a default judgment. In pertinent part, C.P.L.R. §3215(f) states, "On any application for judgment by default, the applicant shall file proof of service of the summons and complaint, or a summons and notice...and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party..."

Plaintiff's motion for a default judgment is denied. Plaintiff has not submitted the requisite proof necessary to support of the facts constituting its claim. Plaintiff submits an affidavit from its managing agent to support plaintiff's contention that defendant owes $69,651.84 in rental arrears from December 2005 through August 2010. His knowledge of same is based upon the rent roll annexed to the moving papers as well as the rental agreement. However, this motion was electronically filed and the copy of the rental agreement scanned into the e-file system is illegible, as is the hard copy provided to this court. It is unclear from looking at the rental agreement, what date it was signed and what period of time it was meant to cover. (Exhibit 1).

Additionally, the copies of the Tenant Rent History annexed to the moving papers list defendant's total monthly rent at $1,095.72. However, plaintiff submitted sufficient documentation from DHCR showing that after October 13, 2001, a rent overcharge occurred and plaintiff was directed to roll back the rent charged to defendant to the "legal regulated rent" and to "make a full refund or credit to the tenant of any rent paid in excess of the legal regulated rent..." pursuant to the chart annexed to defendant's exhibit A. The order of DHCR states that the "legal regulated rent" for defendant's apartment is $486.74 which differs vastly from the amount plaintiff lists in the Tenant Rent History. Plaintiff did not submit any reply papers to address the arguments made by the defendant or to explain the discrepancy in the amount of the monthly rent it claims that plaintiff owes. Therefore, plaintiff has not submitted the necessary proof for the entry of a default judgment against the defendant and the motion for a default judgment in the amount of $69,651.84 is denied.

Moreover, with respect to service of the summons and complaint on defendant, plaintiff resorted to "nail and mail" to serve defendant after making only two (2) attempts at service upon the defendant. Defendant submitted an affidavit stating that she did not receive "any papers" on the date plaintiff claims she was served by "nail and mail," July 27, 2011. She refutes the process server's contention that no one was home when he attempted to effectuate service and when he ultimately served her by "nail and mail." The only "papers" she claims to have received in this matter were in early December 2011 notifying her that the instant default judgment motion was filed.

It is well established that, "...the affidavit of a process server constitutes prima facie evidence of proper service. The mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly executed affidavit of service'..." (citations omitted). In re DeSanchez v. JP Morgan Chase Bank, 57 AD3d 452 (1st Dept. 2008). However, where a defendant submits a "...sworn denial of service containing specific facts to [*4]rebut the presumption of proper service..." the court conducts an evidentiary hearing to determine if service was attained over the defendant. U.S. Bank v. Arias, 85 AD3d 1014 (2nd Dept. 2011).

Since the motion has been denied for plaintiff's failure to submit the proper proof for the entry of a default judgment, this court finds that a Traverse hearing is unnecessary at this time.

Plaintiff is directed to serve a copy of this order with notice of entry upon the defendant and file proof thereof with the clerk's office.

This constitutes the decision and order of this court.

Dated: March 16, 2012

J.S.C.