Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion, filed on January 10, 2025, under motion sequence number four, by Ilona Itskov (hereinafter the plaintiff) for an order pursuant to CPLR 3215 granting leave to enter a default judgment against Lisa Jacob, Natashia Jacob, and Suzanne Jacob (hereinafter the defendants). The motion is opposed.

-Notice of motion

-Affirmation in support

-Affidavit in support

Exhibits A-C

-Affidavit in opposition

PROCEDURAL BACKGROUND

On February 8, 2024, plaintiff commenced the instant action by filing a summons with [*2]notice with the Kings County Clerk's office (KCCO) through the New York State Courts Electronic Filing (NYSCEF) system.

On April 9, 2024, plaintiff filed three affidavits of service of the summons with notice, a verified complaint, and a notice of motion. The notice of motion was filed under sequence number one and sought leave to enter a default judgment against the defendants pursuant to CPLR 3215 for failure to answer the summons and complaint.^[FN1]

The verified complaint alleged eighty-six allegations of fact in support of six denominated causes of action. The first cause of action was for intentional infliction of emotional distress. The second cause of action was for negligent infliction of emotional distress. The third cause of action was for assault and battery. The fourth cause of action was for a permanent injunction. The fifth cause of action was for specific performance. The sixth cause of action was for fraud.

On October 7, 2024, defendant Suzanne Jacob, proceeding pro se, filed a verified answer with motion support in hard copy.^[FN2]

On October 13, 2024, the plaintiff filed a rejection of the verified answer of Suzanne Jacob with the KCCO through NYSCEF.

On October 24, 2024, the plaintiff filed notice of the plaintiff's withdrawal of motion sequence number one with the KCCO through NYSCEF.

On January 22, 2025, defendant Suzanne Jacob filed opposition to the plaintiff's request for a default judgment with motion support in hard copy.

On January 28, 2025, the Court dismissed motion sequence number three as asserted against defendant Lisa Jacob and Susanne Jacob for failure to timely serve the motion papers upon them. The motion as it applied to Natashia Jacob was adjourned to February 18, 2025, at 12:00 pm for a virtual proceeding via Microsoft Teams.

On February 13, 2025, the plaintiff filed a notice of the plaintiff's withdrawal of motion sequence number three with the KCCO through NYSCEF.

At oral argument of the instant motion conducted on April 3, 2025, defendant Suzanne Jacob appeared and orally acknowledged that she filed a verified answer to the verified complaint with motion support in hard copy.

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 [*3]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, 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 [2d Dept 2009], citing CPLR 3215 [f]). CPLR 105 (u) permits a verified complaint to substitute an affidavit if needed (see CPLR 105 [u]).

The plaintiff filed three affidavits of service of the summons with notice with the KCCO, one for each defendant. The affidavits of the licensed process server constitute prima facie proof of service of the summons with notice on the three individual defendants (see City of New York v Miller, 72 AD3d 726, 727 [2d Dept 2010]). Here, the affidavits of plaintiff's process server established that the summons with notice and accompanying papers were personally delivered to each defendant at their home on February 26, 2024.

Uniform Rules for Trial Courts (22 NYCRR) § 202.5-b (a) (1) pertains to electronic filing and provides as follows:

Electronic filing in Supreme Court; consensual program.

(a) Application. (1) On consent, documents may be filed and served by electronic means in Supreme Court in such civil actions and in such counties as shall be authorized by order of the Chief Administrator of the Courts and only to the extent and in the manner provided in this section.

Uniform Rules for Trial Courts (22 NYCRR) 202.5-b (b) (1) and (2) further provide, in pertinent part, as follows:

(1) Commencing an action by electronic means. A party may commence any action in the Supreme Court in any county . . . by electronically filing the initiating documents with the County Clerk through the NYSCEF site.

(2) E-filing in an action after commencement.

(i) Consent of the parties required. After commencement of an action wherein e-filing is authorized, documents may be electronically filed and served, but only by, and electronic service shall be made only upon, a party or parties who have consented thereto. A party's failure to consent to participation in electronic filing and service shall not bar any other party to the action from filing documents electronically with the County Clerk and the court or serving documents upon any other party who has consented to participation. A party who has not consented to participation shall file documents with the court and the County Clerk, and serve and be served with documents, in hard copy. When an e-filing [*4]party serves a document in hard copy on a non-participating party, the document served shall bear full signatures of all signatories and proof of such service shall be filed electronically.

(ii) Consent to e-filing; how obtained. Notwithstanding the following, no party shall be compelled, directly or indirectly, to participate in e-filing pursuant to this section. A consent to e-filing in an action shall state that the party providing it agrees to the use of e-filing in the action and to be bound by the filing and service provisions in this section. A party who has commenced an action electronically shall serve upon the other parties together with the initiating documents a notice of e-filing in a form approved by the Chief Administrator. Such notice shall provide sufficient information in plain language concerning e-filing. Except for an unrepresented litigant, a party served with such a notice shall promptly record his or her consent electronically in the manner provided at the NYSCEF site or file with the court and serve on all parties of record a declination of consent. An unrepresented litigant is exempt from having to file and serve documents electronically in accordance with this section and need not respond to the notice described herein; except that he or she may file a consent to participate in e-filing provided the clerk shall first have explained his or her options for e-filing in plain language, including the option for expedited processing, and inquired whether he or she wishes to participate. Where an unrepresented litigant opts to file a consent hereunder, it shall be documented in the case file in a manner prescribed by the Chief Administrator. Provided, however, that where an unrepresented litigant chooses to participate in e-filing in accordance with these rules, he or she may at any time opt out of such participation by presenting the clerk of the court with a form so declaring. The filing of a consent to e-filing hereunder shall not constitute an appearance in the action under CPLR 320.

The Court takes judicial notice that defendants Lisa Jacob, Natashia Jacob, and Suzanne Jacob have not consented to participation in electronic filing under the NYSCEF system. The Court may take judicial notice of its own records (see Wachovia Bank, N.A. v Williams, 17 Misc 3d 1127[A], 2007 NY Slip Op 52170(U), *3 [Sup Ct, Kings County 2007], citing Matter of Khatibi v Weill, 8 AD3d 485, 485 [2d Dept 2004]).

On April 9, 2024, the plaintiff filed three affidavits of service of the summons with notice, a verified complaint, and a notice of motion under sequence number one with the KCCO under the NYSCEF system. Contrary to the requirements of 22 NYCRR 202.5-b (b) (2), the plaintiff did not electronically file proof of service of the verified complaint and the notice of motion under sequence number one in hard copy to any defendant.

On January 10, 2025, plaintiff filed the instant motion for an order pursuant to CPLR 3215 granting leave to enter a default judgment against Lisa Jacob, Natashia Jacob, and Suzanne Jacob. The plaintiff also did not electronically file proof of service of the instant motion in hard copy to any defendant.

On January 22, 2025, defendant Suzanne Jacob filed an affidavit in opposition to the instant motion with motion support. She averred therein that she was not properly served with the papers seeking a default judgment.

On February 13, 2025, the plaintiff filed a notice of withdrawal of motion sequence number three with the KCCO through NYSCEF. Here too, the plaintiff did not electronically file proof of service of the of withdrawal of motion sequence number three in hard copy to any defendant.

By failing to comply with 22 NYCRR 202.5-bb (1) and (2), plaintiff did not demonstrate that any defendant was properly served with either the verified complaint or with the instant motion. Accordingly, the instant motion is denied without prejudice.

The instant motion by Ilona Itskov for an order pursuant to CPLR 3215 granting leave to enter a default judgment against defendant Lisa Jacob, Natashia Jacob, and Suzanne Jacob is denied without prejudice.

The foregoing constitutes the decision and order of this Court.