Recitation, as required by CPLR 2219 (a), of the papers considered on this motion:

Upon the foregoing papers, defendants move to dismiss the complaint pursuant to CPLR 3211 (a) (8) or alternatively leave to file and serve an answer.

I. Procedural History

Plaintiff commenced the instant action on April 18, 2024 seeking $19,800.00 in rent arrears pursuant to a lease entered into on or about April 1, 2022, alleging that defendants-tenants breached the lease by failing to pay rent beginning on or about January 1, 2023 through November 1, 2023 (compl at ¶¶ 6, 10, 12). Plaintiff's proof of service of the summons and complaint was filed on June 4, 2024. The process server's affidavit states that defendant Isak Mushailov (Isak) was served by delivering process on May 25, 2024 upon "JOHN DOE (REFUSED NAME), CO-OCCUPANT" at 2900 Ocean Avenue in Brooklyn, New York and by mailing process to the same address on May 29, 2024. After service was complete upon filing the proof of service on June 14, 2024 (see CPLR 308 [2]), the time within which defendant was to answer or appear expired on or about July 14, 2024. Defendant Levsho (Levsho) Kukuliyeva was served in the same way.

Plaintiff filed a motion for leave to enter default judgment on or about September 5, 2024, which was denied without prejudice by decision and order entered December 11, 2024 for failing to provide a legible lease (motions sequence no. 001). An affirmation of service indicates that plaintiff's counsel served a copy of the decision with notice of entry on December 23, 2024 to defendant Isak at 505 Elmwood Avenue in Brooklyn and to Levsho at 2157 E 24th Street in Brooklyn.

Plaintiff moved again for leave to enter default judgment on or about January 2, 2025, which was granted on defendants' default by decision and order entered January 22, 2025 (motion sequence no 002). The order directed plaintiff to file a notice of inquest to proceed to an assessment of damages, and plaintiff filed said notice of inquest on January 27, 2025. The record contains affirmation of service by mail to defendants of the notice of entry of the second order granting default judgment and notice of inquest at the same addresses (Elmwood Avenue and E 24th Street, respectively) on January 24, 2025.

On February 18, 2025, defendants moved to vacate the order granting default judgment as to liability, staying all inquests, and directing plaintiff to serve defendants with the complaint (motion sequence no 003). Defendants allege that they "had no idea that this lawsuit was ever filed against [them]. Plaintiff never served [them], never sent a courtesy copy by email, nothing" (defendants' aff dated 2/6/25 at ¶ 4). Defendants further allege that they first learned of this case when "[their] parents received a copy of a document called Notice of Entry and Notice of Inquest at their respective homes" (id. at ¶ 8 [emphasis removed]). Defendants claimed that plaintiff knows the defendants' new address and allegedly said she will sue them at that address but did not and instead served papers to their parents' homes (id. at ¶ 9).

Defendants' motion was granted on consent by decision and order entered May 19, 2025 (Holaman, J.), without mentioning any specific branch(es) of the requested relief. The court's decision and order scheduled a pre-trial conference on July 16, 2025, notwithstanding that issue had never been joined.

On July 16, 2025, the parties appeared for the pre-trial conference where the matter appeared to have been conferenced with a court attorney and the parties engaged in settlement discussions. The Court (Holaman, J.) issued a discovery order for the parties to exchange discovery by August 30, 2025, again notwithstanding that issue had not yet been joined, and adjourned the matter to September 30, 2025. By separate decision and order entered on the same [*2]day, the Court directed that "Within 30 days of the date of this decision (August 15, 2025) the Defendants must file an Answer with the Court" in defendants' respective individual names and mail a copy of the same to plaintiff's counsel.

On August 14, 2025, before the Court's deadline, Migir Ilganayev, Esq. of Ilganayev Law Firm PLLC filed a notice of appearance on behalf of defendants and made the instant motion to dismiss based on lack of personal jurisdiction (motion sequence no 004).

Plaintiff opposed the motion, arguing that defendants waived objections to service of process and/or personal jurisdiction by (1) making a motion for affirmative relief, referring to motion sequence no 003; (2) defendant Isak's appearance in court on July 16, 2025; and (3) defendants' counsel's filing of a notice of appearance without any limiting language or contesting jurisdiction.

II. Plaintiff's Counsel's Affirmation in Opposition with Invalid Legal Authority.

All but one of the caselaw citations plaintiff's counsel cited in opposition to the motion were defective, which included:

• The putative case citation "Matter of Polizzi v Polizzi, 226 AD2d 581 (2d Dept 1996)" leads to a different matter entitled Epes v Healey that stands for a different proposition than what counsel argues in his affirmation;

• Wells Fargo Bank, N.A. v Estwick, 160 AD3d 911 (2d Dept 2018) does not stand for the proposition stated;

• The putative case citation "Matter of Knapp v Knapp, 225 AD2d 1010 (4th Dept 1996)" leads to a different matter entitled Orange Steel Erectors v Newburgh Steel Products Inc. that stands for a different proposition than what counsel argues in his affirmation;

• The putative case citation "Matter of Negron v St. Charles Hosp. & Rehab. Ctr., 121 AD3d 1427 (2d Dept 2014)" leads to a matter entitled People v Rojas, which stands for a completely different proposition than argued in counsel's affirmation

In attempting to locate these cases, the Court will note that it could not find any matter with the case name "Knapp" issued by the 4th Department in 1996, nor any matter with the case name "Negron" issued by the 2d Department in 2014.

At oral argument on the motion, plaintiff's counsel claimed "there was a typo" and/or an "error" in the papers. Counsel requested an opportunity to submit "corrected" papers, which the Court rejected. The Court stated on the record that it was inclined to disregard plaintiff's papers in their entirety for lack of any proper legal support for the arguments made. Two days later, counsel emailed a letter to chambers and opposing counsel apologizing for the submission, which is annexed at the end of this decision and order. In light of the correspondence, the Court will consider plaintiff's affirmation in opposition in rendering this decision, and the arguments made therein, but will rely only on defendants' legal authority as well as the Court's own research.^[FN3]

III. Defendants' Appearance & Potential Waiver of Personal Jurisdiction

A defendant appears in a matter "by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer" (CPLR 320 [a]). Here, it is undisputed that defendants never served an answer. Defense counsel did file a notice of appearance but, contrary to plaintiff's contentions, the failure to reference an objection to personal jurisdiction in said notice does not necessarily confer personal jurisdiction — defendants would still have to make a proper motion if it wished to contest personal jurisdiction (see Vincent C. Alexander Practice Commentaries, McKinnys Cons Laws of NY, Book 7B, C320:3 [2023] ["The inclusion of personal jurisdiction objections in a notice of appearance does nothing to preserve those objections. CPLR 320(b) and 3211(e) are the exclusive means, i.e., such objections are waived if not included in a timely answer or a CPLR 3211(a)(8) motion to dismiss"]).

Here, plaintiff argues that defendants consented to jurisdiction by making a motion for affirmative relief and/or otherwise appeared informally. The Court finds that a formal appearance had been made when defendants made "a motion which had the effect of extending the time to answer" (CPLR 320 [a]). However, that is not necessarily the equivalent of conferring personal jurisdiction. CPLR 320 (b) provides:

When appearance confers personal jurisdiction, generally. Subject to the provisions of subdivision (c) [which are not applicable here], an appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under paragraph eight of subdivision (a) of rule 3211 is asserted by motion or in the answer as provided in rule 3211.

Defendants' motion was granted on consent of plaintiff but the decision did not mention or address every branch of the relief sought. One part of the motion sought an order directing plaintiff to serve the complaint upon defendants because defendants alleged they were never served with process — and if such relief was granted "on consent" then why is there nothing in the record demonstrating such service? As the motion papers clearly raised the issue of personal jurisdiction due to lack of proper service of process, and given the possibility that the complaint has, still, never been properly served, the Court finds that defendants' objection to jurisdiction had been preserved and effectively never decided.

The Court further finds that the time to answer or move had been extended when the Court, the last court appearance on July 16, 2025, gave defendants an extension of time to answer until August 15, 2025. Therefore, this motion to dismiss in lieu of filing an answer, made on August 14, 2025, is timely pursuant to the Court's order as well as CPLR 3211 (e) (cf. Travelon, Inc. v Maekitan, 215 AD3d 710, 713—14 [2d Dept 2023] [corporate officer's affidavit on behalf of corporate defendant in opposition to a motion for preliminary injunction constituted appearance on behalf of corporation; corporate defendant was found in default by failing "to serve and file an answer within 20 days of its informal appearance or move pursuant to CPLR 3211 (a) (8) to dismiss the complaint" on personal jurisdiction grounds]).

IV. Merits of Defendants' Motion to Dismiss (3211 [a][8]).

Defendants' affidavit in support of the motion states that defendants had resided at 2900 Ocean Avenue until November 27, 2023 when Isak and his wife Levsho vacated and surrendered possession (Isak aff at ¶ 2-3). Plaintiff acknowledged that defendants left the unit (id. at ¶ 3; ex C) and defendants allege that plaintiff and her counsel knew of defendants' current address (id. at [*3]¶ 8-9).

Nevertheless, plaintiff allegedly served defendants in May 2024 at their former address, over seven months after they vacated the unit. The manner of service attempted here via CPLR 308 (2) requires "delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served" and mailing the summons "at his or her last known residence" or "his or her actual place of business." "[S]ervice of process upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308" (Everbank v Kelly, 203 AD3d 138, 142-48 [2d Dept 2022]). "[A]n acceptance of service by a person of suitable age and discretion is invalid if the service address is not, in fact, the defendant's actual place of business, dwelling place, or usual place of abode" (id. at 147).

Here it is undisputed that 2900 Ocean Avenue was neither defendants' dwelling place, usual place of abode, nor actual place of business. Plaintiff said nothing substantive in opposition to the contrary.

Accordingly, the Court finds that personal jurisdiction does not lie against defendants, and the default should be vacated without the necessity of a traverse hearing (see Schurr v Fillebrown, 146 AD2d 623, 623-24 [2d Dept 1989]; Silvering v Sunrise Family Med., P.C., 161 AD3d 1021, 1022-23 [2d Dept 2018]; see, e.g., New York State Higher Educ. Servs. Corp. v Perchik, 207 AD2d 1040 [4th Dept 1994]; Design Dev. NYC, Inc. v Goldstein, 2019 NY Slip Op 30854[U], *1-3 [Sup Ct, NY County 2019]; Cohen, DPM v Sumba 2021 WL 2891550 [Sup Ct, NY County 2021]).

V. Conclusion

It is hereby ORDERED that defendants' motion to dismiss is granted and the Clerk is directed to enter judgment in defendants' favor dismissing the complaint.

This constitutes the decision and order of the Court.