By notice of motion filed on May 31, 2016, under motion sequence one, plaintiff Elsie [*2]Russo has moved pursuant to CPLR 3215, for an order: (1) granting a default judgment against defendants Peter A. Kyvellos (hereinafter Kyvellos) and Carlo J. Comello, 3rd (hereinafter Comello) for failure to appear or answer the summons and verified complaint or (2) to set the matter down for an inquest.

On September 2, 2014, plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's Office. Kyvellos and Comello have not answered the complaint or otherwise appeared in the action.

Plaintiff alleges in her complaint the following salient facts: on May 27, 2014 at approximately 7:30 a.m., she was operating a motor vehicle eastbound on the Staten Island Expressway. While stopped in traffic, the plaintiff was allegedly struck twice in the rear by Bhatti's vehicle. The first collision was caused by Bhatti colliding with the rear of plaintiff's vehicle. The second collision was caused by Comello's vehicle colliding with Bhatti's vehicle and pushing Bhatti vehicle into the plaintiff's vehicle. The first and second collision were allegedly caused by the defendants negligent operation of their respective vehicles.

The plaintiff's motion papers consist of a notice of motion, an affirmation by plaintiff's counsel and two exhibits labeled one and two. Exhibit one contains the commencement papers. Exhibit two contains the affidavits of service of the commencement papers on Kyvellos and Comello by Abraham Franco, plaintiff's licensed process server (hereinafter Franco).

Bhatti has submitted an affirmation of counsel in partial opposition to the motion.

CPLR 3215 (a) permits a plaintiff to seek default when the defendant has failed to appear. "On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting plaintiff's claim, and proof of the defaulting party's default in answering and appearance" (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649 [2nd Dept 2011]). "CPLR 3215 (f) states that upon any application for judgment by default, proof of facts constituting claim, default, and amount due are to be set fourth in affidavit made by the party" (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]).

Assuming proper service of the commencement papers, a plaintiff is required to set forth the facts constituting the elements of the claim to succeed on a motion to hold a defendant in default (see CPLR 3215 (f), HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]). In support of the instant motion the plaintiff has submitted a verified complaint. CPLR 105 (u) permits a verified complaint to substitute as an affidavit. The complaint alleges that the plaintiff was seriously injured in an automobile accident caused by the defendants negligent operation of their respective automobiles. Plaintiff has sufficiently set forth the fact constituting the claim.

A plaintiff seeking to assert jurisdiction over a defendant must "bear the ultimate burden [*3]of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process" (Gottesman v Friedman, 90 AD3d 608, 609 [2nd Dept 2011] quoting Santiago v Honcraft, 79 AD3d 847, 848 [2nd Dept 2010]. Service of process must be made in strict compliance with statutory methods for effecting personal service upon a natural person pursuant to CPLR 308 (Id.).

Franco's affidavits of service of the commencement papers demonstrates that service was attempted upon Kyvellos pursuant to CPLR 308 (1) and upon Comello pursuant to CPLR 308 (2).

CPLR 308 (1) and (2) provides the following: Personal service upon a natural person shall be made by any of the following methods:

1. by delivering the summons within the state to the person to be served; or,

2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision (a) of section two hundred thirty-two of the domestic relations law; CPLR 308 (2) requires that the delivery to a person of suitable age and discretion occur at the actual place of business, dwelling place or usual place of abode of the person to be served. Another requirement is mailing to either the recipients last known residence or place of business with the delivery occurring within twenty days of each other. The plaintiff must also file proof of the service with the clerk of the court designated in the summons within twenty days of the delivery or the mailing. The proof of service must identify the person of suitable age and discretion and state the date, time and place of service.

CPLR 320 (a) provides that a party is not required to answer a complaint until he or she is served with the summons (Howard B. Spivak Architect, P.C. v Zilberman, 59 AD3d 343, 344 [1st Dept 2009]). Pursuant to CPLR 320, a " defendant appears by serving an answer or notice of appearance, or by making a motion which has the effect of extending time to answer."

A process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service (Engel v Boymelgreen, 80 AD3d 653 [2nd Dept 2011]). Franco's affidavit of service on Kyvellos alleges that the commencement papers were served on October 15, 2014, at 9:24 a.m., by delivering a true copy personally to the defendant Peter A. Kyvellos at 72 Ebbitts Street, Staten Island, New York 10306. Plaintiff has thus established proper service of the commencement papers on Kyvellos [*4]triggering his obligation to answer the complaint.

Franco's affidavit of service on Comello alleges that the commencement papers were served on October 15, 2014, at 10:04 a.m. by personal delivery to his mother, Jean Comello at his dwelling located at 36 Dunbar Street Staten Island, New York 10308. Franco then avers that on October 21, 2014, he mailed the commencement papers to the same address that he personally delivered the papers to his mother.

The affidavit of service reflects that service was attempted on Comello pursuant to CPLR 308 (2). When a defendant is served pursuant to CPLR 308 (2) an additional filing requirement exists in order for service to be complete. The affidavit of service must be filed with the clerk of the court within twenty days of either its delivery or mailing, whichever is later and service is complete ten days after such filing. Franco's affidavit of service does not reflect that it was filed with the Kings County Clerk's Office. The affirmation of plaintiff's counsel in support of the motion is silent on this issue. As a consequence, plaintiff has not established that Comello was properly served or that his obligation to answer the complaint has started to run. Accordingly, plaintiff's motion for a default judgment against Comello pursuant to CPLR 3215 must be denied.

The plaintiff seeks the matter to be set down for an inquest on the damages sustained by the plaintiff. There are three remaining defendants that are not in default. As such, the portion of the motion seeking the Court to set the matter down for an inquest is premature. An inquest is to be held at the time of trial.

Plaintiff's motion for default judgment against Kyvellos pursuant to CPLR 3215 is granted.

Plaintiff's motion for default judgment against Comello pursuant to CPLR 3215 is denied without prejudice.

The foregoing constitutes the decision and order of this court.