Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiffs Jin Shui Chen and Min Li (hereinafter plaintiffs) filed on May 7, 2020, under motion sequence number three, for an order pursuant to CPLR 3215 for a default judgment against the defendants Panda NY Bus Inc., Akai LLC and Kai Lin for failure to appear or respond to the summons and verified complaint. The motion is unopposed.

Notice of motion

Affirmation in support

Affidavit in support

Exhibits A-D

On June 4, 2019, the plaintiffs 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 (hereinafter KCCO). The verified complaint and plaintiff Min Li's affidavit of merit allege the following salient facts. On December 11, 2017, at [*2]approximately 6:40 P.M., plaintiffs were passengers in a 2013 Sprinter travel van bearing Georgia license plate CBJ6689. Song Chen was driving the van on the roadways of Interstate 20 around 5 miles east of Highway 113, City of Villa Rica, State of Georgia. Fei Shao owned the van and Panda NY Bus Inc., Yogo Bus, Inc., Akai LLC, and Kai Lin were using the van commercially for interstate travel. On that date, time and location, the plaintiffs were seriously injured when the van rolled over due to Song Chen's dangerous and reckless operation of the van.

On January 9, 2020, the plaintiff's filed a stipulation of discontinuance discontinuing the action against defendants Yogo Bus, Inc., Fei Shao, and Song Chen without prejudice.

Plaintiffs' motion papers consist of a notice of motion, an affirmation in support, an affidavit of plaintiff Min Li in support, an affidavit of translation, and four annexed exhibits labeled A through D. Exhibit A is a copy of the summons and verified complaint. Exhibit B are copies of the affidavits of service of the commencement papers on each of the defendants. Exhibit C is a copy of a stipulation of discontinuance against Yogo Bus, Inc., Fei Shao, and Song Chen. Exhibit D contains, among other things, affidavits and proof of service of the commencement papers on some of the defendants.

On December 20, 2019, this Court denied without prejudice the plaintiffs' prior motion for a default judgment because the plaintiff's affidavit of merit was in a foreign language and not in compliance with CPLR 2101 (b).

In the instant motion, the plaintiffs once again have sought leave to enter a default judgment against Panda NY Bus Inc., Akai LLC and Kai Lin pursuant to CPLR 3215 (a). The instant motion corrected the CPLR 2101 (b) deficiency in their prior motion. CPLR 3215 (a) permits a plaintiff to seek a default judgment against a defendant who fails to appear or answer (see CPLR 3215; Power Up Lending Group, Ltd. v Cardinal Resources, Inc., 160 AD3d 674, 675 [2nd Dept 2018]). A plaintiff seeking leave to enter a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defaulting defendant's failure to answer or appear (see CPLR 3215 [f]; Michael v Atlas Restoration Corp., 159 AD3d 980, 981 [2nd Dept 2018]). "CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit made by the party" (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]).

Here in support of the instant motion, the affidavit of service of plaintiffs' process server demonstrates that service of the commencement papers was properly effectuated upon Panda NY Bus Inc., Akai LLC and Kai Lin. In particular, Panda NY Bus Inc. was served on June 17, 2019 by service on the Secretary of State pursuant to Business Corporation Law § 306 (b) (1). Service of process on a corporation is deemed to be complete upon service to the Secretary of State (see Business Corporation Law § 306). Akai, LLC was served on June 12, 2019, by service on the Secretary of State pursuant to Limited Liability Company Law § 303 (a). Service of process on a limited liability company is deemed to be complete upon service to the Secretary of State (see Limited Liability Company Law § 303 [a]). Defendant Kai Lin was served on June 31, 2019, pursuant to CPLR 308 (2). The affidavit of service of the commencement papers upon Kai Lin was filed with the KCCO on June 21, 2019 and demonstrates service upon Kai Lin pursuant to CPLR 308 (2). CPLR 308 (2) provides that service is deemed complete ten days after the [*3]affidavit of service is filed with the KCCO (see Reem Contracting v Altschul & Altschul, 117 AD3d 583 [1st Dept 2014]).

The affirmation of plaintiffs' counsel demonstrates that Panda NY Bus Inc., Akai LLC, and Kai Lin have not interposed an answer to the verified complaint. The affidavit of plaintiff Min Li sets forth the facts constituting plaintiffs' claims against Panda NY Bus Inc., Akai LLC and Kai Lin. Through the affirmation of their counsel and the affidavits of service of the commencement papers, the plaintiffs have demonstrated proper service of the commencement papers on Panda NY Bus Inc., Akai LLC and Kai Lin in accordance with CPLR 3215 (f) (Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept 2011]). They have also established that Panda NY Bus Inc., Akai LLC and Kai Lin has not interposed an answer to the verified complaint. Through the affidavit of Min Li, the plaintiffs has provided proof of facts sufficient to establish a viable claim. Jin Shui Chen and Min Li have satisfied the requirements of CPLR 3215 demonstrating entitlement to a default judgment against Panda NY Bus Inc., Akai LLC and Kai Lin.

The motion of Jin Shui Chen and Min Li for an order pursuant to CPLR 3215 (a) granting a default judgment against defendants Panda NY Bus Inc., Akai LLC and Kai Lin is granted and an inquest on damages will be held at the time of trial.

The foregoing constitutes the decision and order of this Court.