Recitation in accordance with CPLR 2219 (a) of the papers considered on the order to show cause filed on September 19, 2025, under motion sequence number one, by defendants Brain Science Holdings LLC, Brain Science MSO, LLC, Fiduciary Intermediary LTD., HBOT of Nova, Inc, Hyperbaric Services of the Palm Beaches LLC, d/b/a International Institute for Brain Enhancement, Brain Science Imaging, LLC d/b/a Brain Science Imaging, LLC, International Brain Research Foundation, Inc., d/b/a International Brain Research Foundation, Advance Imaging Management, LLC d/b/a Advance Imaging Management, Advanced Neuroscience Systems, LLC, d/b/a Advanced Neuroscience Systems, Hyperbaric SVCS of the Palm Beaches LLC, d/b/a Hyperbaric SVCS of the Palm Beaches LLC, d/b/a Hyperbaric SVCS of the Palm Beaches, Advanced Brain Centers of VA (hereinafter "company defendants"), and Philip Anthony De Fina (collectively "defendants") for an order pursuant to pursuant to CPLR 5015 vacating and setting aside the default judgment entered herein on August 26, 2025, in favor of the plaintiff against the defendants; pursuant to CPLR 3012 (d) and CPLR 3025 (d) allowing the defendants to file an answer to the complaint; pursuant to CPLR 6313 staying all proceedings on the part of the Plaintiff and any Kings County Sheriff or other enforcement officer for the enforcement of said judgment pending the hearing and determination of this motion. The motion is opposed.

Exhibit A

Exhibits A-C

Exhibit A

Exhibits A-E

On July 24, 2025, the plaintiff commenced the instant action by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO). On August 22, 2025, the plaintiff filed twelve affirmations by Maxime H. Beaulieu (hereinafter Beaulieu) averring service of the commencement papers on July 24, 2025, upon each one of the named defendants by delivery via certified mail return receipt requested.

The verified complaint includes two annexed exhibits labeled A and B. Exhibit A is described as the contract between the plaintiff and the defendants. Exhibit B is described as a remittance history. The verified complaint alleges forty-two allegations of fact in support of five denominated causes of action. The first and second cause of action are for breach of contract, the third is for breach of a guaranty, the fourth is for fraud, and the fifth is for unjust enrichment.

On August 25, 2025, the plaintiff applied for and obtained a default judgment with the KCCO.

On July 24, 2025, the plaintiff commenced the instant action by filing the commencement papers with the KCCO. On August 22, 2025, the plaintiff filed twelve affirmations by Beaulieu pertaining to service of the commencement papers. Each affirmation declared service of the commencement papers on July 24, 2025 upon each one of the named defendants by delivery via certified mail return receipt requested.

"[P]arties to a contract are free to contractually waive service of process" (Alfred E. Mann Living Tr. v. ETIRC Aviation S.a.r.l., 78 AD3d 137, 139 [1st Dept 2010]). "By definition, such waivers render inapplicable the statutes that normally direct and limit the acceptable means of serving process on a defendant" (id.). The Court recognizes the right of contracting parties to waive the protections of statutory methods of service of process and to designate alternative methods of service. In the case at bar, the plaintiff contends that the defendants did exactly that and contractually agreed to service of the commencement papers by certified mail requested.

It is noted that although the twelve affirmations by Beaulieu averred service of the commencement papers by certified mail return receipt requested, the plaintiff did not file any of the certified mail return receipts.

The defendants seek, inter alia, an order vacating the clerk default judgment entered against them. The first thing the Court noticed was that the plaintiff moved for a clerk default judgment pursuant to CPLR 3215 (a) on August 25, 2025, thirty-two days after the action was commenced.

Assuming for the sake of argument that service of the commencement papers by [*3]certified mail return receipt requested was proper, the next obvious question is when was service deemed complete.

Without deciding the authenticity and enforceability of the parties' contract annexed as exhibit A to the verified complaint, the Court finds that service of process is covered in section XX ^[FN1] , s, (1) of the contract. That section not only permits service of the commencement papers by certified mail return receipt requested, but it also provides the parties agreement regarding when service is deemed complete. By that section, service is complete the earlier of, (a) four calendar days after mailing, (b) when delivered, or (c) when actually received.

Applying this section to the case at bar raises two issues. First, by not filing the certified mail return receipts, the plaintiff did not show that the defendants received the commencement papers. A fortiori, the plaintiff did demonstrate when any defendant received the commencement papers and when service of process was completed.

CPLR 3215 (a) provides in pertinent part as follows:

"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. If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The clerk, upon submission of the requisite proof, shall enter judgment for the amount demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305, plus costs and interest . . . Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment."

CPLR 320 (a) provides in pertinent part as follows:

"Requirement of appearance. The defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. An appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant by delivering it to an official of the state authorized to receive service in his behalf or if it was served pursuant to section 303, subdivision two, three, four or five of section 308, or sections 313, 314 or 315, the appearance shall be made within thirty days after service is complete."

A party is not required to appear in an action until it is properly served with a summons. The time in which a defendant is required to appear depends on the manner the [*4]summons was served upon them. In an action, such as the case at bar, it is twenty days from personal delivery and thirty days from completion of service by any other method. In the instant action, the time to appear would be thirty days from service of the commencement papers. By not providing proof of the date that each of the defendants received the commencement papers, the plaintiff failed to establish that the defendants time to appear in the action was ever triggered. Moreover, when the plaintiff applied for a clerk default judgment pursuant to CPLR 3215 (a), thirty-two days after the action was commenced, it is clear, that the clerk default judgment was entered before the defendants' time to appear in the action had expired.

"The decision as to the setting aside of a default in answering is generally left to the sound discretion of the Supreme Court, the exercise of which will generally not be disturbed if there is support in the record therefor" (U.S. Bank N.A. v Losner, 145 AD3d 935, 936 [2d Dept 2016], citing Manigat v Louis, 262 AD2d 289, 289 [2d Dept 1999]). "[W]here . . . a defendant seeking to vacate a default raises a jurisdictional objection pursuant to CPLR 5015 (a) (4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default" (Rattner v Fessler, 202 AD3d 1011, 1015 [2d Dept 2022]).

The defendants have moved to vacate the clerk default judgment pursuant to CPLR 5015 (a) (4). "Pursuant to CPLR 5015 (a) (4), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of jurisdiction to render the judgment or order" (Hudson Valley Bank, N.A. v Eagle Trading, 208 AD3d 648, 649 [2d Dept 2020] [internal quotation marks omitted]). It is the plaintiff's burden of proving that personal jurisdiction has been acquired over a defendant (Wells Fargo Bank, N.A. v Singh, 204 AD3d 732, 733 [2d Dept 2022]).

Here, the plaintiff has not established that it acquired personal jurisdiction over the defendants. Without filing the certified mail return receipts, the plaintiff cannot establish when and if the defendants received service of the commencement papers. There remains an open and yet unresolved question regarding whether the Court has personal jurisdiction over the defendants. Until the question is resolved, the defendants should not be under the yoke of an unsupported clerk default judgment.

All collection activity conducted pursuant to the clerk default judgment must immediately cease and all funds obtained by such collection activity must be returned. If the plaintiff again seeks a default judgment it must do so by a notice of motion.

The defendants have moved pursuant to CPLR 3012 (d) for leave to file a late answer. CPLR 3012 (d) provides as follows:

"Extension of time to appear or plead. Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable [*5]excuse for delay or default."

A motion pursuant to CPLR 3012 (d) to compel a plaintiff to accept a late answer requires the movant to demonstrate "both a reasonable excuse for the default and the existence of a potentially meritorious defense" (Raphael v. City of Peekskill, 237 AD3d 1232, 1233 [2d Dept 2025]). Where a defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant demonstrated the existence of a potentially meritorious defense (see Trokaik Realty, Inc. v. HP Yuco, HDFC, Inc., 188 AD3d 1281 [2d Dept 2020]).

For the reasons set forth herein, the clerk default judgment is vacated and there is an open issue regarding whether the Court has jurisdiction over the defendants. Under these circumstances, should the defendants choose to appear in the action by filing an answer, the answer would not be late. Consequently, the defendants' motion for leave to file a late answer is rendered academic.

The branch of the motion by defendants Brain Science Holdings LLC, Brain Science MSO, LLC, Fiduciary Intermediary LTD., HBOT of Nova, Inc, Hyperbaric Services of the Palm Beaches LLC, d/b/a International Institute for Brain Enhancement, Brain Science Imaging, LLC d/b/a Brain Science Imaging, LLC, International Brain Research Foundation, Inc., d/b/a International Brain Research Foundation, Advance Imaging Management, LLC d/b/a Advance Imaging Management, Advanced Neuroscience Systems, LLC, d/b/a Advanced Neuroscience Systems, Hyperbaric SVCS of the Palm Beaches LLC, d/b/a Hyperbaric SVCS of the Palm Beaches LLC, d/b/a Hyperbaric SVCS of the Palm Beaches, Advanced Brain Centers of VA and Philip Anthony De Fina for an order pursuant to pursuant to CPLR 5015 vacating and setting aside the default judgment entered herein on August 26, 2025, in favor of the plaintiff against the defendants is granted.

All collection activity conducted pursuant to the clerk default judgment must immediately cease and all funds obtained by such collection activity must be returned. If the plaintiff again seeks a default judgment it must do so by a notice of motion.

The branch of the motion by defendants Brain Science Holdings LLC, Brain Science MSO, LLC, Fiduciary Intermediary LTD., HBOT of Nova, Inc, Hyperbaric Services of the Palm Beaches LLC, d/b/a International Institute for Brain Enhancement, Brain Science Imaging, LLC d/b/a Brain Science Imaging, LLC, International Brain Research Foundation, Inc., d/b/a International Brain Research Foundation, Advance Imaging Management, LLC d/b/a Advance Imaging Management, Advanced Neuroscience Systems, LLC, d/b/a Advanced Neuroscience Systems, Hyperbaric SVCS of the Palm Beaches LLC, d/b/a Hyperbaric SVCS of the Palm Beaches LLC, d/b/a Hyperbaric SVCS of the Palm Beaches, Advanced Brain Centers of VA and Philip Anthony De Fina for an order pursuant to CPLR 3012 (d) granting leave to file a late [*6]answer to the verified complaint is rendered academic.

The foregoing constitutes the decision and order of this Court.