By notice of motion filed on April 22, 2013, defendant Joy Construction Corporation (hereinafter JCC) has moved for an order granting a default judgment on its cross-complaint asserted against defendant JTP Waterworks Inc. (hereinafter JTP). No party has opposed the motion.

BACKGROUND

On May 4, 2012, plaintiff PVI Industries (hereinafter PVI) commenced the instant action by filing a summons and complaint with the Kings County Clerk's office (KCCO). PVI s complaint contains twenty-seven allegations of fact in support of three causes of action. The first cause of action is against JTP for $50,177.63, the unpaid balance due for commercial water heaters that PVI sold and delivered to JTP. The second cause of action is against Joanne Rabuffo, JTP's principal, based on her personal guaranty of JTP's obligation. The third cause of action is against 224 Wythe Avenue LLC, JCC, Liberty Mutual Insurance Company, Sure Set Fasteners Corp., and Rosner Construction LLC. [*2]Seeking a declaration of validity and priority of the mechanic lien that PVI filed on real property located at 224 Wythe Avenue, Brooklyn, New York (the subject property).

By their joint verified answer filed with the KCCO on June 27, 2012, defendants JCC, 224 Wythe Avenue, LLC, and Liberty Mutual Insurance Company joined issue.On September 11, 2012, JCC commenced an action against co-defendant JTP by filing a cross-complaint with the KCCO. The cross-complaint demanded an answer and contained sixteen allegations of fact in support of two causes of action for monetary damaged based on JTP's breach of a subcontract. JTP did not answer or otherwise appear on either PVI's complaint or JCC's cross-complaint.

MOTION PAPERS

JCC's motion papers consist of the notice of motion, an affidavit of its president, Amnon Shalhov, and six annexed exhibits labeled 1 through 6. Exhibit 1 contains PVI's summons and verified complaint, a credit information report for JTP and three documents pertaining to a mechanic's lien. Exhibit 2 contains an affidavit of the service of PVI's summons and verified complaint upon JTP. Exhibit 3 is an affidavit of additional service of PVI's summons and verified complaint on JTP by mail. Exhibit 4 contains the joint verified answer of JCC, 224 Wythe Avenue LLC, and Liberty Mutual Insurance Company to PVI's complaint. Exhibit 5 is a copy of JCC's cross-complaint against JTP. Exhibit 6 is notice pursuant to CPLR 3215(g)(4)(ii) dated March 15, 2013, which asserts, among other things, that service of an additional copy of the cross-complaint was mailed to JTP.

LAW & APPLICATION

JCC's motion is for a default judgment against JTP based on JTP's failure to appear or answer its cross-complaint. Although not stated in the notice of motion or in the affidavit of its president, it is apparent that JCC is moving pursuant to CPLR 3215, the only appropriate procedural vehicle for the relief sought.

CPLR 3215(a) provides in pertinent part that when 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 that defendant. CPLR 3215(f) provides that "on any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party." In order to find that a party has defaulted, the movant must demonstrate that the defaulting party had an obligation to respond to the movants' pleading and failed to do so.

"CPLR 3011 sets forth what pleadings there shall be and what they shall be called in an action. The general rule is that every pleading under the CPLR that contains a cause of action must, labels notwithstanding, be responded to with an answer or, in the case of a counterclaim, with a reply. A special rule exists for cross-claims. In 1977, CPLR 3011 [*3]was amended to its present form in which it calls for an answer to a cross-claim only if it is demanded in the cross-claim itself. Absent such a demand, the allegations of the cross-claim are deemed denied" (see CPLR 3011; Conners, Practice Commentaries, 7B C3011:8; see also Giglio v. NTIMP, Inc, 86 AD3d 301 [2nd Dept 2011]).

JCC did not include the cross-claims against JTP as part of its answer to PVI's complaint. Rather, it filed its cross-complaint as a separate pleading with the KCCO and served it on JTP by regular mail. The cross-complaint demanded an answer. In order to support its application for a default judgment JCC is required to show that it properly served the coss-complaint on JTP thus triggering its obligation to respond.

CPLR 3012(a) provides that if a defendant has not appeared in the action then any subsequent pleading must be served upon it in the same manner as a summons and complaint. However, if the party has already appeared, a pleading can be served in the manner provided for service of papers generally. Papers may be served upon a party through their attorney of record via regular mail. This is the method through which interlocutory papers, all litigation papers beyond initial service of process, are served. (see CPLR 2103).

Once a party is properly served with a summons and complaint or a cross-complaint it must answer within 20 days after service of the pleading to which it is responding. A defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer (see CPLR 320[a]).

JCC's motion papers accurately assert that JTP did not appear or answer PVI's complaint and that PVI has obtained a default judgment against it. JCC contends that it has complied with CPLR 3215 and is also entitled to a default judgment on its cross-complaint.

Under these circumstances JCC's cross-complaint was required to be served in the manner of a summons and complaint. (See CPLR 3012, Conners, Practice Commentaries, 7B C3012:7 Serving Cross-Claim on Non-Appearing Defendant).

JCC served its cross-complaint on JTP by regular mail. JCC's affidavit of service by mail, however, did not include the required statements of service by mail and acknowledgment of receipt with the mailing. Thus, the attempt at service by mailing did not satisfy the alternative requirements of CPLR 312—a (see Brown v. Midrox Ins. Co., — AD3d —, —- N.Y.S.2d ——, 2013 NY Slip Op 05281, 2013 WL 3466735 [3rd Dept 2013]). Furthermore, inasmuch as JCC's only attempt at service was by mail, it did not effect personal service on JTP pursuant to CPLR 311(a)(1) or Business Corporation Law § 306(b). As a result JTP had no obligation to respond to JCC's cross-complaint and its failure to do so may not serve as a basis for a default judgment against it. Therefore, JCC's motion for an order granting a default judgment on its cross-complaint asserted against defendant JTP is denied.

The foregoing constitutes the decision and order of this Court. [*4]

Enter:

J.S.C.

Enter Forthwith:____________________________

J.S.C.