Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on October 5, 2023, under motion sequence number two, by Ignatius Romany (hereinafter the plaintiff) for an order: (1) granting leave to enter a default judgment in favor of the plaintiff on the issue of liability against defendants Rigo Limo-Auto, Corp. (hereinafter Rigo Limo-Auto) and Yasmin Santiago (hereinafter Santiago); and (2) setting the matter down for an inquest on the question of damages. The motion is unopposed.

Exhibits A-D

On October 5, 2023, plaintiff commenced this action for personal injuries and property [*2]damages by filing a summons and verified complaint (hereinafter the commencement papers) against Victoria Paredes, Francisco Alma Cortes, Rigo Limo-Auto and Santiago with the Kings County Clerk's office (KCCO).

The verified complaint alleges the following salient facts. Defendant Rigo Limo-Auto leased a 2016 Toyota vehicle, registered in the State of New York and bearing a license plate number T672844C, to Santiago. Defendant Santiago operated and controlled the vehicle in the course of her employment. Victoria Paredes was the owner of a 2018 Mitsubishi vehicle, also registered in New York State with license plate number KLT8882, and the vehicle was leased to Francisco Alma Cortes for use in the course of his employment.

On August 21, 2022, at approximately 11:30 a.m., the defendants' vehicles allegedly collided with a 2004 Nissan bearing New York license plate GAR3908, operated by plaintiff. The collision is alleged to have occurred on the eastbound side of the Jackie Robinson Parkway, approximately 2/10 of a mile east of Forest Park Drive, in Queens County, New York.

Plaintiff asserts two causes of action: first, that due to defendants' negligence, plaintiff sustained serious physical injuries and seeks damages; and second, that because of defendants' negligence, plaintiff suffered property damage to his vehicle in the amount of $10,000.

On March 1, 2024, defendants Victoria Paredes and Francisco Amla Cortes interposed and filed with the KCCO a verified answer which asserted nine affirmative defenses and a crossclaim against defendants Rigo Limo-Auto and Santiago.

On December 3, 2024, plaintiff moved for an order: (1) granting leave to enter default judgment against defendants Rigo Limo-Auto and Santiago on the issue of liability, and (2) setting the matter down for an inquest on the issue of damages.

On December 9, 2024, plaintiff filed an amended notice of motion to correct the plaintiff's name in the original motion. Plaintiff maintains that both Rigo Limo-Auto and Santiago failed to timely respond to the complaint after being properly served.

Plaintiff's motion papers consist of a notice of motion, an affirmation in support, an affirmation of service, an amended notice of motion, an affirmation of service for the amended motion and four annexed exhibits labeled A through D. Exhibit A is a copy of the summons and complaint. Exhibit B is a copy of defendants Victor Paredes and Francisco Alma Cortes' answer. Exhibit C is a copy of the affidavits of service on defendant Rigo Limo-Auto. Exhibit D is a copy of the affidavits of service on defendant Santiago.

Plaintiff moves for leave to enter a default judgment against defendants Rigo Limo-Auto, and Santiago based upon their alleged failure to respond to the summons and verified complaint. Although plaintiff does not expressly identify the statutory basis for the motion, CPLR 3215(a) governs motions for default judgment in the event of a defendant's failure to appear or respond.

CPLR 3215(a) provides, in pertinent part:

"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 . . . "

To obtain a default judgment under CPLR 3215, the moving party must submit (1) proof of service of the summons and complaint, (2) proof of the facts constituting the claim, and (3) proof of the default in answering or appearing (see Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 [*3]AD3d 649, 651 [2d Dept 2011]; Allstate Ins. Co. v Austin, 48 AD3d 720 [2d Dept 2008]).

On June 24, 2024, plaintiff filed an affidavit of service of the commencement papers upon defendant Rigo Limo-Auto with the KCCO. Robert Guyette, the plaintiff's licensed process server, averred service of the commencement papers upon defendant Rigo Limo-Auto, on June 17, 2024, by personal deliver of same upon the New York State Secretary of State pursuant to the Business Corporation Law.

CPLR 304 provides that an action is commenced by filing a summons and complaint or summons with notice. The instant action was commenced on October 5, 2023. CPLR 306-b, provides in pertinent part that service of the summons and complaint must be completed within 120 days of commencement of the action.

Here, the summons and complaint were served on June 17, 2024, two hundred and fifty-six (256) days after the action was commenced. It is noted that the plaintiff never sought an extension of time to effectuate service. Inasmuch as service of the commencement papers upon Rigo Limo-Auto occurred well beyond the 120-day period prescribed by CPLR 306-b, the court lacks jurisdiction over this defendant, and the motion for leave to enter a default judgment against defendant Rigo Limo-Auto must be denied. The denial is without prejudice.

On March 5, 2024, plaintiff filed an affidavit of service of the commencement papers upon defendant Santiago with the KCCO. The affidavit by John Foster, plaintiff's licensed process server, averred that he made two attempts to serve Santiago with the commencement papers at Santiago's residence but there was no one there each time. The first attempt was made on Tuesday, February 13, 2024, at 7:00 pm; the second was made on Thursday, February 22, 2024, at 4:00 pm. The two attempts proving unsuccessful, on Wednesday, February 28, 2024, at 11:00 a.m., he affixed the commencement papers to the door of defendant's residence. On February 28, 2024, he mailed the commencement papers to the defendant at the same address where the delivery was attempted. He then filed the affidavit of service with the KCCO.

CPLR § 308(4) provides as follows:

"where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person 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 affixing 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 affixing or mailing, whichever is effected later; service shall be complete ten days after such filing [ ]"

When a plaintiff seeks a default judgment, the burden is on the plaintiff to prove proper service upon the defendant with the summons and complaint. The affidavits of plaintiff's process [*4]server demonstrates that he attempted service of the summons and complaint on Santiago pursuant to CPLR § 308(4).

A plaintiff may only resort to service pursuant to CPLR § 308(4) where service pursuant to CPLR § 308 (1) and (2) cannot be made with due diligence (County of Nassau v Lotosky, 34 AD3d 414 [2d Dept 2006]). Of the two attempts at service on the defendant one was made during the work week during normal business hours when it could reasonably have been expected that the defendant would either be working or be in transit to or from work (see Earle v Valente, 302 AD2d 353 [2d Dept 2003]). The affidavit of the plaintiff's process server, together with the papers submitted with the instant motion failed to demonstrate that the process server attempted to ascertain the defendant's' business address and to effectuate personal service at that location, pursuant to the provisions of CPLR § 308(1) and (2) (County of Nassau v. Long, 34 AD3d 787 [2d Dept 2006]).

Having failed to demonstrate the exercise of due diligence before attempting service of the summons and complaint pursuant to CPLR 308(4), plaintiff's motion for a default judgment must be denied. The denial, however, is without prejudice.

The motion by plaintiff Ignatius Romany for an order pursuant to CPLR 3215 granting leave to enter a default judgment against defendant Rigo Limo-Auto, Corp. and Yasmin Santiago is denied without prejudice.

The foregoing constitutes the decision and order of this Court.