Judgments - Default Judgment - Default Judgment against Limited Liability Company - Applicability of Additional Service Requirements under CPLR 3215 (g) (4)

Hecht, Kleeger & Damashek, P.C., New York City (Jonathan S. Damashek of counsel), for plaintiff.

In accordance with CPLR 2219 (a), the decision herein is made upon consideration of all of the papers filed by the parties with the court via NYSCEF (New York State Courts Electronic Filing System) in connection with the motion (mot{**87 Misc 3d at 586} No. 1) of plaintiff Terrell A. Turner, made pursuant to CPLR 3215, seeking an order granting plaintiff a default judgment against defendant WFHA Home Street, LLC, setting this matter down for an inquest, and granting such other and further relief that is just and proper.

The motion is unopposed.

This is a personal injury action; plaintiff claims that plaintiff suffered injuries as the result of a trip and fall accident which occurred on April 20, 2023.

On a motion seeking to enter a default judgment pursuant to CPLR 3215, a movant is required to submit proof of service of the summons and complaint, the facts constituting the cause of action, and the defendant's default in answering or appearing (see CPLR 3215; Bigio v Gooding, 213 AD3d 480, 481 [1st Dept 2023]). To demonstrate the facts [*2]constituting the cause of action, the movant must submit sufficient proof to enable a court to determine if the cause of action is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). The court may consider the complaint, affidavits, and affirmations submitted by the plaintiff (id.). A verified complaint may be used as the affidavit of the facts constituting the claim and the amount due under CPLR 3215 (f) if the complaint is verified by plaintiff (Nedeltcheva v MTE Transp. Corp., 157 AD3d 423 [1st Dept 2018]). Additionally, the proponent of an unopposed motion for default judgment bears the burden of establishing, inter alia, that the defendant was properly served with the motion for default judgment (see CPLR 306, 2103, 3215 [f]).

Plaintiff satisfies the burden of demonstrating that plaintiff possesses a viable claim by submitting the verified complaint. The complaint was personally verified by plaintiff and sets forth the particulars of the accident and the basis for imposing liability on defendant.

Plaintiff also establishes that the summons and complaint was properly served upon defendant via delivery to the Secretary of State. Limited Liability Company Law § 303, in relevant part, provides:

"303. Service of process on limited liability companies

"(a) Service of process on the secretary of state as{**87 Misc 3d at 587} agent of a domestic limited liability company . . . shall be made in the manner provided by paragraph one or two of this subdivision . . . (1) Personally delivering to and leaving with the secretary of state . . . , or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee . . . Service of process on such limited liability company shall be complete when the secretary of state is so served" (Limited Liability Company Law § 303).

Hence, on this record, plaintiff completed service on the defendant limited liability company by service on the Secretary of State as permitted by Limited Liability Company Law § 303.

Uniquely, however, in the First Department, a second provision of the CPLR must be satisfied to obtain a default judgment against a limited liability company that is served via the Secretary of State.

CPLR 3215 (g) (4), in relevant part, requires:

"(i) When a default judgment based upon non-appearance is sought against a domestic or authorized foreign corporation which has been served pursuant to paragraph (b) of section three hundred six of the business corporation law, an affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the defendant corporation at its last known address at least twenty days before the entry of judgment.

"(ii) The additional service of the summons by mail may be made simultaneously with or after the service of the summons on the defendant corporation pursuant to paragraph (b) of section three hundred six of the business corporation law, and shall be accompanied by a notice to the corporation that service is being made or has been made pursuant to that provision" (CPLR 3215 [g] [4] [i], [ii]).

Specifically, in interpreting this provision in concert with Limited Liability Company Law § 303, the Appellate Division, Second Department explicitly held that, based on the express [*3]language of CPLR 3215 (g) (4), the additional notice requirements under CPLR 3215 (g) (4) apply only to service on corporations and are inapplicable to limited liability companies served via Secretary of State under Limited Liability Company{**87 Misc 3d at 588} Law § 303 (Mitchell v Kingsbrook Jewish Med. Ctr., 210 AD3d 887, 889 [2d Dept 2022]).

In contrast, in the First Department, while it is recognized that service upon a limited liability company via the Secretary of State is authorized pursuant to Limited Liability Company Law § 303 and not by Business Corporation Law § 306 as specifically referenced in CPLR 3215 (g) (4), Appellate Division, First Department precedent holds that compliance with CPLR 3215 (g) (4) is nevertheless required in actions involving limited liability companies. Specifically, without much discussion, the First Department held that the additional notice requirements of CPLR 3215 (g) (4) apply to service on limited liability companies by the Secretary of State in Wonder Works Constr. Corp. v RCDolner, LLC (44 AD3d 526, 526 [1st Dept 2007]) and Crespo v A.D.A. Mgt. (292 AD2d 5 [1st Dept 2002]). Relying on these appellate decisions, numerous trial courts within the First Department have held that CPLR 3215 (g) (4) must be satisfied to obtain a default judgment against a limited liability company that was served via the Secretary of State under Limited Liability Company Law § 303 (Lovell Safety Mgt. Co. L.L.C. v ICF Panels Install, LLC, 2022 WL 4447271 [Sup Ct, NY County, Sept. 21, 2022, No. 656640/2021]; Vijan v Singh, 2015 WL 5881803 [Sup Ct, NY County, Oct. 2, 2015, No. 152822/2015]).

The court therefore observes that there appears to be a conflict between the First and Second Departments as to the applicability of CPLR 3215 (g) (4) to limited liability companies, and in the face of such conflict, acknowledges that this court is bound to follow the precedent of the First Department (see Momentum Telecom, Inc. v Velocity Wireless, LLC, 2024 WL 844824, 2024 NY Misc LEXIS 71023 [Sup Ct, NY County, Feb. 21, 2024, No. 650554/2023]). As no such additional service of the summons and complaint and a notice of default was provided in this case, the motion is denied. (CPLR 3215 [g] [4].)

Accordingly, it is hereby ordered that the motion (mot No. 1) of plaintiff Terrell A. Turner, made pursuant to CPLR 3215, seeking an order granting plaintiff a default judgment against defendant WFHA Home Street, LLC, setting this matter down for an inquest, and granting such other and further relief that is just and proper is denied with leave to renew by August 1, 2025.