Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed September 20, 2024, under motion sequence one, by Joseph Aurelien (hereinafter "the plaintiff") for an order pursuant to CPLR 3215 granting a default judgment against defendants LK & Gill Enterprise, Inc. (hereinafter "LKGE"), Tranquilo Food Corp. (hereinafter "TFC") and A & H Installation, Inc. (hereinafter "A&H") and granting plaintiff an inquest for the assessment of damages. The motion is unopposed.

-Notice of motion

-Affirmation in support

Exhibits 1-6

-Affidavit of service

On February 3, 2023, the plaintiff commenced the instant action to recover damages for personal injuries by filing a summons and verified complaint (hereinafter "the commencement papers") with the Kings County Clerk's Office (hereinafter "KCCO"), asserting claims against defendants Martin & Kenneth Realty Corp. (hereinafter "MKRC"), POFI Construction Corp [*2](hereinafter "POFI"), and LK & Gill Enterprises, Inc (hereinafter "LKGE").

On February 13, 2023, plaintiff filed an affidavit of service of the commencement papers upon LKGE with the KCCO. The affidavit demonstrated personal service upon LKGE on February 8, 2023, via the New York State Secretary of State.

The verified complaint alleges forty-five allegations of fact in support of a single cause of action seeking damages for personal injury. The verified complaint alleges the following salient facts.

On or prior to November 14, 2022, defendant MKRC was and continues to be the owner of the property and premises known as and located at 1410 St. John's Place, Brooklyn, New York 11213 (hereinafter "premises") and caused construction, repairs, and renovations to be performed on and at the premises.

On or prior to November 14, 2022, defendant TFC was and continued to be the tenant/lessee of the premises. On or prior to November 14, 2022, MKRC and TFC entered a contract with defendant POFI, where they would become and act as the general contractor for the repair, renovation, and construction work to be performed on and at the premises. On or prior to November 14, 2024, MKRC, TFC, and POFI entered into a contract with the defendants LKGE and A&H, who would erect scaffolding and a sidewalk bridge for certain construction, repairs, and renovations to be performed on and at the premises.

On November 14, 2022, the sidewalk in front of and adjacent to the premises was in a dangerous, unsafe, hazardous condition. The plaintiff, while traversing the sidewalk in front of and adjacent to the premises, was caused to trip and fall because of the piece of scaffolding that was on the portion of the sidewalk that pedestrians traversed, and as a result, sustained and suffered critical injuries, including, but not limited to, a fractured wrist requiring open reduction and internal fixation.

On July 24, 2023, defendant POFI interposed and filed an answer to the verified complaint with the KCCO.

On March 20, 2024, the plaintiff filed a supplemental summons and amended verified complaint that added TFC and A&H as defendants with KCCO.

On April 1, 2024, plaintiff filed two affidavits of service with the KCCO. The affidavit demonstrating that service of the commencement papers was effectuated upon TFC and A&H on March 26, 2024, via the New York State Secretary of State.

On September 20, 2024, the plaintiff filed the instant motion seeking leave to enter a default judgment against defendant TFC, A&H, and LKGE based on their failure to appear or answer the complaint.

On December 16, 2024, plaintiff filed a second supplemental summons and amended verified complaint with the KCCO.

Plaintiff's motion papers consist of a notice of motion, an affirmation in support of motion, six annexed exhibits labeled 1 through 6, and an affirmation of the mailing. Exhibit 1 is a copy of summons and complaint. Exhibit 2 is a copy of the supplemental summons and amended verified complaint. Exhibit 3 is an affidavit of service and default letter to TFC. Exhibit 4 is an affidavit of service and default letter to A&H. Exhibit 5 is an affidavit of service and default letter to LKGE. Exhibit 6 is an affirmation of merit.

Plaintiff seeks leave to enter default judgment against TFC, A&H, and LKGE pursuant to CPLR 3215. For the reasons set forth below, the branch of the motion as it pertains to defendant LKGE is addressed separately from the branch of the motion as it pertains to defendants TFC and A&H.

CPLR 3215 provides in pertinent part as follows:

(a) Default and entry. 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 him ...

(f) Proof. On 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.

"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 its claim, and proof of the defaulting party's default in answering or appearing" (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2d Dept 2011], citing CPLR 3215 [f]). "CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim . . . are to be set forth in an affidavit 'made by the party'" (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2d Dept 2009]).

On February 13, 2023, plaintiff filed an affidavit of service of the commencement papers with KCCO. The affidavit of service demonstrates that service was effectuated upon LKGE on February 8, 2023, at 11:00 AM, by personally delivering and leaving two copies of the commencement papers with an authorized agent of the New York Secretary of State, pursuant to Business Corporation Law § 306 (b) (1). Service of process on a corporation is deemed complete upon delivery to the Secretary of State (see Business Corporation Law § 306). Accordingly, the plaintiff demonstrated proper service upon LKGE, triggering its obligation to respond to the verified complaint. The affirmation of the plaintiff's counsel indicates that LKGE did not file an answer to the verified complaint.

The complaint, filed on February 3, 2023, was verified by plaintiff's counsel, pursuant to CPLR 3020 (d), and not by the plaintiff, and therefore may not serve as an affidavit pursuant to CPLR 105 (u) (see CPLR 3020 [d]; see CPLR 105 [u]). On September 9, 2024, the plaintiff filed an affirmation setting forth the facts constituting the plaintiff's claim. The facts contained therein set forth a viable claim. Accordingly, the plaintiff has established entitlement to a default judgment against LKGE.

"A plaintiff's failure to comply with CPLR 1003 when attempting to add a new defendant is a jurisdictional defect, and an amended complaint that is not filed in accordance with CPLR 1003 and 3025 is a legal nullity" (Braylovskaya v Skazka Rest., 231 AD3d 700 [2d Dept 2024], citing Bodkin v 112 Auto. Ctr., Inc., 214 AD3d 620, 621-622 [2d Dept 2023]).

CPLR 3025 (a) provides that "A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it."

CPLR 1003 provides as follows:

Nonjoinder of a party who should be joined under section 1001 is a ground for dismissal of an action without prejudice unless the court allows the action to proceed without that party under the provisions of that section. Misjoinder of parties is not a ground for dismissal of an action. Parties may be added at any stage of the action by leave of court or by stipulation of all parties who have appeared, or once without leave of court within twenty days after service of the original summons or at any time before the period for responding to that summons expires or within twenty days after service of a pleading responding to it. Parties may be dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just. The court may order any claim against a party severed and proceeded with separately.

On July 24, 2023, POFI interposed and filed an answer to the verified complaint. In accordance with CPLR 3025 (a), the latest date that the plaintiff could have amended the verified complaint without leave of the Court would have been twenty days after July 24, 2023, the date that POFI filed their answer. In the case at bar, plaintiff filed the supplemental summons and amended verified complaint that added TFC and A&H as defendants on March 20, 2024.

It is undisputed that the plaintiff attempted to add TFC and A&H as defendants by amending the complaint long after the permissible period to do so as of right had elapsed without seeking court permission. Consequently, under these circumstances, the plaintiff's failure to comply with CPLR 3025 (a) and CPLR 1003 in its effort to include TFC and A&H as defendants renders the amended complaint a legal nullity. With the amended complaint rendered a legal nullity, a default judgment cannot be entered against TFC and A&H (see Braylovskaya v Skazka Rest., 231 AD3d 700 [2d Dept 2024], citing Bodkin v 112 Auto. Ctr., Inc., 214 AD3d 620, 621-622 [2d Dept 2023]; see Hulse v Wirth, 175 AD3d 1276, 1279 [2d Dept 2019]).

The plaintiff also seeks for the matter to be set down for an inquest on the damages sustained by the plaintiff. There are two remaining defendants that are not in default. Therefore, an inquest is to be held at the time of trial.

The branch of the motion by plaintiff Joseph Aurelien for an order pursuant to CPLR 3215 granting a default judgment against defendant LK and Gill Enterprise, Inc is granted.

The branch of the motion by plaintiff Joseph Aurelien for an order pursuant to CPLR 3215 granting a default judgment against defendants Tranquilo Food Corp and A&H Installation, Inc. is denied.

The foregoing constitutes the decision and order of this Court.