Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated May 30, 2014, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that plaintiffs' motion (seq. #001), which seeks an Order for a default judgment, pursuant to CPLR §3215, against defendants Fabrice Fortune and Marie C. Fortune is hereby denied and the complaint is dismissed for the reasons set forth herein; and it is further

ORDEREDthat the movant shall promptly serve a copy of this Order upon all appearing parties, or their attorney(s) if represented by counsel, by first class mail and shall thereafter promptly file the affidavit(s) of service with the Clerk of the Court; and it is further

ORDERED that a copy of this Order and proof of service of same shall be annexed as exhibits to any motions resubmitted pursuant to this Order.

In this action, the plaintiffs essentially allege that they were injured as a result of a motor vehicle accident on October 18, 2009 in which the vehicle occupied by the plaintiffs was struck by the vehicle operated by defendant Fabrice Fortune and owned by defendant Marie C. Fortune. The plaintiffs now seeks a default judgment against defendants Fabrice Fortune and Marie C. Fortune ^[FN1] , for failure to answer or otherwise appear in this action. The plaintiffs' motion is hereby denied for the following reasons:

(1) failure to submit a proper affidavit: (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service, as required by 50 USCS Appx §521[b]).

Title 50 USCS Appx §521, which applies in state courts, was enacted for the "protection of service members against default judgments." Pursuant to 50 USCS Appx §521(a), this section "applies to any civil action or proceeding in which the defendant does not make an appearance" (emphasis supplied). Under 50 USCS Appx §521(b)(1), "the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit: (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the [*2]plaintiff is unable to determine whether or not the defendant is in military service." Under §521(b)(4), "[t]he requirement for an affidavit under paragraph (1) may be satisfied by a statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury" (emphasis supplied).

Here, the plaintiffs' affidavits of service do not contain the statutorily required statement as to the military status of the defendants. For example, defendant Fabrice Fortune was allegedly served pursuant to CPLR 308(2) by delivery to a person of suitable age and discretion, "Jane Doe." The military service portion of the plaintiffs' affidavit of service upon Fabrice Fortune merely states that the process server "asked the person spoken to whether the recipient [Jane Doe] was in active military service . . . Recipient [Jane Doe] wore ordinary civilian clothes and no military uniform . . . Upon information and belief I aver that the recipient [Jane Doe] is not in the military service . . . ." (emphasis added). Similarly, although defendant Marie C. Fortune was allegedly served pursuant to CPLR 308(4), the so-called "nail and mail" method of service, by affixing the summons and complaint to her door, the military service portion of the affidavit of service states, "Upon information and belief I aver that the recipient [the door] is not in the military service . . . ." (emphasis added). Obviously, neither of these affidavits concerning the military status of the defendants is credible. Therefore, pursuant to 50 USCS Appx §521(b), a judgment of default may not be entered against either defendant.

(2) failure to submit evidentiary proof of compliance with the personal service provisions of CPLR §308 regarding "due diligence" for those defendants served by the "nail and mail" method pursuant to CPLR §308(4), sufficient to establish jurisdiction over the defendant(s), not merely a showing of several attempts to serve a defendant at his or her residence without a showing that there was first a genuine inquiry about the defendant's whereabouts and place of employment.

The "due diligence" portion of the plaintiff's affidavit of service upon defendant Marie C. Fortune alleges that prior to the November 15, 2012, 6:05 a.m. "nail and mail" service, the process server attempted to deliver the summons and complaint to that defendant on November 13, 2012 (Tuesday) at 7:05 p.m., on November 14, 2012 (Wednesday) at 2:20 p.m., and on November 15, 2012 (Thursday) at 6:05 a.m. There is no indication that the process server attempted to inquire about or serve the defendant at a place of employment.

The "nail and mail" method of service pursuant to CPLR §308(4) may be used only where personal service under CPLR §308(1) and (2) cannot be made with "due diligence" (Lemberger v Khan, 18 AD3d 447, 794 NYS2d 416 [2d Dept 2005]). The due diligence requirement of CPLR §308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received (McSorley v Spear, 50 AD3d 652, 854 NYS2d 759 [2d Dept 2008]; Estate of Waterman v Jones, 46 AD3d 63, 843 NYS2d 462 [2d Dept 2007]; O'Connell v Post, 27 AD3d 630, 811 NYS2d 441 [2d Dept 2006]; Scott v Knoblock, 204 AD2d 299, 611 NYS2d 265 [2d Dept 1994]; Kaszovitz v Weiszman, 110 AD2d 117, 493 NYS2d 335 [2d Dept 1985]).

What constitutes due diligence is determined on a case-by-case basis, focusing not on the [*3]quantity of the attempts at personal delivery, but on their quality (McSorley v Spear, supra; Estate of Waterman v Jones, supra). Attempting to serve a defendant at his or her residence without showing that there was a genuine inquiry about the defendant's whereabouts and place of employment is fatal to a finding of due diligence as required by CPLR §308(4) (Id.; see also, Sanders v Elie, 29 AD3d 773, 816 NYS2d 509 [2d Dept 2006]). Further, absent any evidence that the process server attempted to determine that the address where service was attempted was, in fact, the actual dwelling or usual place of abode of the defendant(s), such as by searching telephone listings or making inquiries of neighbors, the requirement of CPLR §308(4), that service under CPLR §308(1) and (2) first be attempted with "due diligence," is not met (Kurlander v A Big Stam, Corp., 267 AD2d 209, 699 NYS2d 453 [2d Dept 1999]).

Since the plaintiff has failed to meet the "due diligence" requirement for "nail and mail" service under CPLR §308(4), jurisdiction over the defendant has not been established and the plaintiff's motion must be denied (Sanders v Elie, supra; Earle v Valente, 302 AD2d 353, 754 NYS2d 364 [2d Dept 2003]; Annis v Long, 298 AD2d 340, 751 NYS2d 370 [2d Dept 2002]) Earle v Valente, supra; Annis v Long, supra).

In support of this application, the plaintiff submits an attorney affirmation and a summons and complaint verified only by the plaintiffs' attorneys. With regard to the proof necessary on an application for judgment by default, CPLR 3215(f) states, in relevant part, that "[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney.... Proof of mailing the notice required by subdivision (g) of this section, where applicable, shall also be filed." In support of the motion, the movant fails to submit the required affidavit made a party. In the absence of either a proper affidavit by the party or a complaint verified by the party, not merely by an attorney with no personal knowledge, the entry of judgment by default is erroneous (see, Peniston v Epstein, 10 AD3d 450, 780 NYS2d 919 [2d Dept 2004]; Grainger v Wright, 274 AD2d 549, 713 NYS2d 182 [2d Dept 2000]; Finnegan v. Sheahan, 269 AD2d 491, 703 NYS2d 734 [2d Dept 2000]; Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 [2d Dept 1996]). The motion for default is, therefore, denied.

(4) failure to seek judgment within one year of the alleged default and failure to otherwise show why the complaint should not be dismissed, as required by CPLR §3215(c).

In this motion, plaintiffs' purported affidavits of service indicate that both defendants were [*4]allegedly served with the summons and complaint on November 15, 2012. Plaintiffs' motion for a default judgment, however, was not filed until May 30, 2014, more than one year after the alleged default by the defendants. Pursuant to CPLR §3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed" (emphasis supplied). The determination of what constitutes sufficient cause lies within the sound discretion of the trial court (see London v Iceland Inc., 306 AD2d 517, 761 NYS2d 862 [2d Dept 2003]).

Since the plaintiffs failed to seek judgment within one year of the alleged defaults, failed to prove a reasonable excuse for the delay, and failed to prove a meritorious cause of action, the motion for a default judgment must be denied and the complaint is dismissed (Riggi v Sommerville, 273 AD2d 290, 710 NYS2d 543 [2d Dept 2000]; (Demery v New York, 149 AD2d 405, 542 NYS2d 971 [2d Dept 1989]; Manago v Giorlando, 143 AD2d 646, 533 NYS2d 106 [2d Dept 1988]).

Based upon the foregoing, the plaintiffs' motion is denied and the complaint is dismissed pursuant to CPLR §3215(c).

This constitutes the Order of the Court.

Peter H. Mayer, J.S.C.