Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on April 29, 2024, under motion sequence number two, by Sarah Hughes (hereinafter the plaintiff) for an order pursuant to CPLR 3215 granting leave to enter a default judgment in favor of the plaintiff and against the defendants Mark ^[FN1] Malek and Dame Mbaye in the amount of $82,733.00, representing the rental arrears, lost revenue, and repair costs sustained by the plaintiff. The motion is opposed.

Exhibits 1-6

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on November 14, 2024, under motion sequence number three,^[FN2] by Dame Mbaye (hereinafter the moving defendant), moving pro se, for an order pursuant to CPLR 3211 (a) (8) dismissing the complaint of Sarah Hughes (hereinafter the plaintiff) for lack of personal jurisdiction. The motion is opposed.

Exhibit A

Exhibits A-C

On October 18, 2023, plaintiff commenced the instant action by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office (hereinafter the KCCO). The verified complaint alleges thirty-two allegations of fact in support of three causes of action. The first cause of action is for breach of a lease agreement. The second is for a judgment declaring that the defendants are and continue to be liable to the plaintiff for the monetary obligations, as same continue to accrue in an amount to be determined by this Court. The third cause of action is for attorney fees due under the parties' lease agreement.

The verified complaint alleges that the instant action is by Sarah Hughes, as landlord, against her tenants, Mary Malek and Dame Mbaye under a lease for the rental property located at a certain address in Brooklyn, New York. Plaintiff alleges that the tenants have accrued arrears in basic rent totaling $43.000.00 through March 15, 2023, the term of the lease beginning March 1, 2020, at a rate of $3,400.00 a month. Plaintiff is suing the tenants in this plenary action to obtain declaratory and equitable relief, repayment of rent arrears, damages incurred as a result of tenants' breaches of the lease, and if plaintiff prevails, attorneys' fees, costs, and expenses incurred by the plaintiff in the prosecution of this action.

Defendant Dame Mbaye did not interpose an answer to the verified complaint and instead has filed the instant motion to dismiss the action pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction.

Under motion sequence number two, the Court issued an order dated January 7, 2025, denying the motion for a default judgment against Mary Malek for plaintiff's failure to provide a subsequent mailing pursuant to CPR 3215 (g) (3) (i) as required on a claim for breach of contract. The Court also set a briefing schedule on motion sequence number two as it pertained to Dame Mbaye and on motion sequence number three.

Although, the plaintiff's motion for a default judgment was filed first under motion sequence number two, the Court will first address the defendant's motion seeking dismissal for lack of personal jurisdiction under motion sequence number three. Before addressing any other issues, the Court must first determine whether it has personal jurisdiction over the defendant (see Wells Fargo, N.A. v Jones, 139 AD3d 520, 522 [1st Dept 2016]. If the Court lacks personal jurisdiction over the defendant "all subsequent proceedings" against that defendant "would be rendered null and void" (id., citing Cipriano v Hank, 197 AD2d 295, 298 [1st Dept 1994]).

On November 15, 2023, the plaintiff filed an affidavit of service of the commencement papers on defendant Dame Mbaye, under NYSCEF doc. no. 7. The affidavit of Wendys Feliz, plaintiff's licensed process server (hereinafter Feliz), alleged service of the commencement papers on Dame Mbaye as follows. On Friday, November 10, 2023, at 1:51 PM, at a certain address ^[FN3] in Bronx, NY 10469, said premises being identified as Dame Mbaye's dwelling house (usual place of abode) within the state, Feliz delivered a copy of the commencement papers to "'Jane Doe'-refused name." Subsequently, on November 13, 2023, Feliz completed service by mailing a true copy of the commencement papers to the same address "in a 1st Class postpaid properly addressed envelope" to Dame Mbaye. On June 5, 2025, plaintiff's counsel clarified that the person of suitable age and discretion that Feliz delivered the commencement papers to for Dame Mbaye was Mary Malek, his wife.

"The affidavit of a process server constitutes prima facie evidence of proper service" (HSBC Bank USA, N.A. v Whitter, 159 AD3d 942, 945 [2d Dept 2018]). "A sworn denial of receipt of service containing 'detailed and specific contradiction of the allegations in the process server's affidavit' may defeat the presumption of proper service" (id, citing Machovec v Svoboda, 120 AD3d 772, 773 [2d Dept 2014]). The law is well settled that "[p]ersonal jurisdiction is not acquired pursuant to CPLR 308 (2) unless both the delivery and mailing requirements have been complied with" (Williams v MTA Bus Co., 224 AD3d 467, 468 [1st Dept 2024]). The delivery and "mailing requirement of CPLR 308 (2) is to be strictly construed" (id.). The failure to comply with CPLR 308 (2)'s delivery and mailing requirement is a jurisdictional defect warranting a finding as a matter of law that service thereunder was invalid (see id. at 468-469).

Dame Mbaye has raised an issue regarding whether the Mary Malek was a person of suitable age and discretion and whether he was served at his residence or usual place of abode. He presented five orders of protection issued against him on behalf of Mary Malek and her two minor children by the Honorable Judge Lauren T. Broderick, beginning on November 8, 2023, and ending on March 5, 2024, which barred him from Mary Malek's home and place of employment. He also presented evidence that he was a person experiencing homelessness.

The defendant has raised the issue, and the burden is on the plaintiff to establish that the service of process was valid. "In determining whether service of process is proper, the plaintiff 'bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over a defendant was obtained'" (Sinay v Schwartzman, 148 AD3d 1068, 1069-1070 [2d Dept 2017]).

"The person to whom delivery is made must objectively be of sufficient maturity, understanding and responsibility under the circumstances to be reasonably likely to convey the summons to the defendant. Thus, delivery to adult relatives, employees, co-workers, and apartment-house doormen as persons of suitable age and discretion, has been sustained" (City of New York v Chemical Bank, 122 Misc 2d 104, 109 [Sup Ct, NY County 1983]).

However, here, Mary Malek was involved in a neglect proceeding brought against Dame Mbaye. Honorable Judge Lauren T. Broderick issued five orders of protection against him on her behalf and on behalf of her two minor children starting on November 8, 2023 and ending on March 5, 2024. The orders of protection barred Dame Mbaye from Mary Malek's residence or workplace. Given the adversarial relationship and legal restrictions adversarial position between them, Mary Malek was not an appropriate, reliable, or suitable person to receive service of process of the commencement papers on Dame Mbaye's behalf.

The situation between Mary Malek and Dame Mbaye is similar to the facts in Home [*2]Props., L.P., v Kalter (24 Misc 3d 391 [Nassau Dist Ct, 1st Dist 2009]). In that case, the court found that the defendant's wife was not a person of suitable age and discretion to accept process for her husband, the respondent, due to an order of protection and other proceedings pending between them (id. at 394). The court reasoned that the presence of the order of protection, which ordered the respondent to stay away from his wife, made it unlikely that she would notify or deliver process to the respondent (id.). Notably, the court stated that it was irrelevant whether the process server, and by extension the petitioner, knew of the conflict of interest when serving process (id.).

Here, the Court finds the reasoning and holding in Home Props., L.P. v Kalter persuasive and applies the same logic to the instant action. Mary Malik was not a person of suitable age and discretion for receipt of service on behalf of Dame Mbaye. Accordingly, the court lacks personal jurisdiction over Dame Mbaye. Dame Mbaye's motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) is granted.

Consequently, the plaintiff's motion for leave to enter a default judgment against Dame Mbaye pursuant to CPLR 3215 is denied.

The motion by plaintiff Sarah Hughes for an order pursuant to CPLR 3215 granting leave to enter a default judgment in favor of the plaintiff and against the defendant Dame Mbaye is denied.

The motion by defendant Dame Mbaye for an order pursuant to CPLR 3211 (a) (8) dismissing the complaint of Sarah Hughes for lack of personal jurisdiction is granted.

The foregoing constitutes the decision and order of this Court.