McKenzie v Dario

Supreme Court, Bronx County

Decided on May 26, 2026

Index No. 814059/2025E

Veronica G. Hummel, J.

In accordance with CPLR 2219 (a), the decision herein is made upon consideration of all papers filed in NYSCEF regarding the motion of plaintiff SAYQUAN MCKENZIE [Mot. Seq. 1] (plaintiff), made pursuant CPLR 3215, for an order granting plaintiff a default judgment as to liability as against defendant ANTONIO JIMENEZ REYES DARIO and setting the matter down for inquest as to damages.

There is no opposition to the motion.

This is an action for personal injuries arising from a motor vehicle accident that occurred on February 20, 2024. Plaintiff seeks an order granting plaintiff a default judgment against defendant on liability.

On a motion for a default judgment made pursuant to CPLR 3215, a plaintiff is required to submit proof of service of the summons and complaint, the facts constituting the cause of action, and the defendant's default in answering or appearing (see CPLR 3215; Clarke v Liberty [*2]Mut. Fire Ins. Co., 150 AD3d 1192 [2d Dept 2017]). To demonstrate the facts constituting the cause of action, the plaintiff needs to submit sufficient proof to enable a court to determine if the cause of action is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). The court may consider the complaint, affidavits, and affirmations submitted by the plaintiff (Id.). As the proponent of an unopposed motion for default judgment plaintiff also bears the burden of establishing, inter alia, that the defendant was properly served with the default motion (see CPLR 306; CPLR 3215[f]; and CPLR 2103). Plaintiff must further submit proof that the individual defendant is not on active military service.

In this action, the summons and complaint were filed on July 1, 2025. Defendant was served pursuant to CPLR 308 on August 2, 2025. Defendant has not answered.

The motion for default judgment was filed on March 26, 2026, made returnable on April 14, 2026, and notified defendant that, pursuant to CPLR 2214[b], the answering affidavits were "required to be served . . . at least seven (7) days before the return date of this motion".

The affidavit of service of the instant motion reflects service on defendant by mail on April 1, 2026, thirteen (13) days before the return date. Defendant did not oppose the motion.

CPLR 2214 [b] requires that "[a] notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard." In other words, the movant must give at least eight (8) days' notice of the motion.

A motion on notice is made when it is served (see CPLR 2211). When motion papers are served via ordinary mail, a five-day (5) (mailing made within the state) or six-day (6) period (mailing made outside the state) set forth in CPLR 2103 [b][2] must be added to the eight (8) days required notice of motion. The 5 or 6-day addition of CPLR 2103 [b][2] for ordinary mailing are applicable only when a period of time is measured from the service of a paper and that paper is served via regular mail or an overnight service (Siegel & Connors, New York Practice § 202 [6th ed. 2018]).

The instant notice of motion is such a document and therefore it is from the date of its mailing that the return day is measured (see In re Estates of Brillon, 142 Misc 2d 124, 125 [Sur. Ct. Bronx County 1988]). Here, the mailing of the notice of motion was completed within the State of New York. As such, the usual notice period for an ordinary notice of motion served by mail originating in New York State of thirteen (13) days, and not eight (8) days^FN1, governs the timelines of the motion. It appears that the present notice of motion satisfies this directive to the extent that the service by mail was thirteen (13) days before the return date of April 14, 2026.

The legal analysis of the appropriateness of the service of the notice of motion, however, does not end there. In addition, CPLR 2214[b] provides that:

"(b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least [*3]sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time".

Hence, when, as in this case, a movant demands, pursuant to CPLR 2214 [b], that the responding papers to a motion served by mail be served at least seven (7) days prior to the return date, the motion must be served at least sixteen (16) days in advance of the return date (see CPLR 2214 [b]).

On this motion, therefore, since such seven-day response deadline was imposed, the motion had to be served at least sixteen (16) days in advance of the return date, which was not done (see CPLR 2214 [b]); Criollo v 719 Henry, LLC., 84 Misc 3d 1209[A] [Sup. Ct. Kings County 2024]; see generally Williams v Davita Healthcare Partners, Inc., 172 AD3d 791 [2d Dept 2019]). By imposing the seven-day pre-return date deadline, plaintiff commanded defendant to respond within one day: the motion was served by mail on April 1, 2026 (with a five day extension for service by mail) resulting in receipt on April 6, 2026, and the seventh day prior to April 14, 2026 was April 7th. This is manifestly unfair, in disregard of the CPLR's timing provisions, and warrants denial of the motion (see Criollo v 719 Henry, LLC., supra; Mashantucket Pequot Gaming Enter. v Ping Lin, 31 Misc 3d 1218[A] [Sup. Ct. Kings County 2011]). A movant cannot give respondent the minimum amount of time permitted to oppose the motion and demand opposition in advance (Goldstein v Saltzman, 13 Misc 3d 1023, 1028 [Sup. Ct. Nassau County 2006]; see Morabito v Champion Swimming Pool Corp., 18 AD2d 706 [2d Dept 1962]). As has been held, a motion is properly denied for failure to provide sufficient time in the notice of motion for a party to respond (National Bank of Canada v Skydell, 181 AD2d 645, 646 [1st Dept 1992]).

Hence, under the circumstances, plaintiff did not serve the motion on defendant a sufficient number of days before the answering papers were due in violation of CPLR 2214 [b]. The failure to give the defendant timely notice of the motion deprives the court of jurisdiction to entertain the motion and renders any resulting order void (see Bacon v Nygard, 232 AD3d 407 [1st Dept 2024]; Newrez LLC v Morton, 212 AD3d 528 [1st Dept 2023]; Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907 [2d Dept 2017]; Morabito v Champion Swimming Pool Corp., supra). Such a defect has been found to be jurisdictional, at least where there has been no appearance by the other side (see Financial Servs. Veh. Trust v Law Offs. of Dustin J. Dente, 86 AD3d 532, 533-34 [2d Dept 2011]). Applying this analysis here, the Court has no jurisdiction over the movant's instant motion, and the motion is denied.

In any event, the motion for a default judgment is appropriately denied because plaintiff fails to attest that an effort was undertaken to determine whether defendant was in miliary service. While the absence of a valid nonmilitary affidavit may be a simple irregularity and not a jurisdictional defect (see Gantt v Northshore-LIJ Health System, 140 AD3d 418 [1st Dept 2016]), the nonmilitary affidavit is a requirement under federal law for any civil action in order to protect military personnel from default judgments (see 50 USC § 3931). Thus, plaintiff should have filed an affidavit stating whether defendant is in military service, providing necessary facts to support the affidavit, or, if plaintiff was unable to determine if defendant is in military service, stating so (Petre v Lucia, 205 AD3d 438 [1st Dept 2022]; see Unitrin Advantage Ins. Co. v 21st Century Pharm., 158 AD3d 450 [1st Dept 2018]; Avgush v. De La Cruz, 30 Misc 3d 133[A] [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2011]).The motion is therefore appropriately denied with leave to renew on appropriate papers (Unitrin Advantage Ins. Co. v 21st Century Pharm., supra).

As for the remainder of the criteria, plaintiff establishes that service of process of the complaint was completed on defendant and defendant is in default in the action. Plaintiff also satisfies the final requirement for a default judgment by proving the facts of the causes of action by submission of an affirmation of merits.

Accordingly, it is hereby

ORDERED that the motion of plaintiff SAYQUAN MCKENZIE [Mot. Seq. 1] (plaintiff), made pursuant CPLR 3215, for an order granting plaintiff default judgment as to liability as against defendant ANTONIO JIMENEZ REYES DARIO and setting the matter down for an inquest as to damages is DENIED WITH LEAVE TO RENEW BY SEPTMBER 1, 2026; and it is further

ORDERED that plaintiff shall serve a copy of this Decision/Order with notice of entry upon all non-appearing and pro se parties by regular or overnight mail, and upon defendant's insurer, if known, by overnight mail and email by July 15, 2026 and upload proof of said service to NYSCEF by July 25 2026; and it is further

ORDERED that the Clerk shall mark the motion sequence 1 decided in all court records.

The foregoing constitutes the Decision/Order of the court.

Dated: May 26, 2026

Bronx, New York

Hon. Veronica G. Hummel, A.S.C.J.