Miterko v. Peaslee

• Decision Date: 25 January 2011
• Parties: R. Scott MITERKO, et al., plaintiffs-respondents, v. Stuart D. PEASLEE, et al., defendants-respondents, Joe Korbl Plumbing & Heating, Inc., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 314

80 A.D.3d 736

R. Scott MITERKO, et al., plaintiffs-respondents,

v. Stuart D. PEASLEE, et al., defendants-respondents,Joe Korbl Plumbing & Heating, Inc., appellant, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 25, 2011.

Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Robert I. Meyers of counsel), for appellant.

Alan B. Blattberg, New York, N.Y., for plaintiffs-respondents.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for negligence and breach of contract, the defendant Joe Korbl Plumbing & Heating, Inc., appeals from an order of the Supreme Court, Kings County (F. Rivera, J.), dated January 16, 2009, which granted the plaintiffs' motion, among other things, for leave to enter a default judgment against it on the issue of liability upon its failure to appear or answer the complaint and denied its cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it on the ground of lack of personal jurisdiction.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiffs' motion, inter alia, for leave to enter a default judgment against the defendant Joe Korbl Plumbing & Heating, Inc., on the issue of liability upon its failure to appear or answer the complaint; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whether proper personal service was effected pursuant to CPLR 311(a)(1) solely for the purpose of determining the plaintiffs' motion for leave to enter a default judgment and thereafter a new determination of the plaintiffs' motion.

The Supreme Court properly denied the appellant's cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it on the ground of lack of personal jurisdiction. In opposition to the appellant's cross motion asserting that service of process pursuant to CPLR 311(a)(1) was not properly effected, the plaintiffs established that valid service was made pursuant to Business Corporation Law § 306(b)(1) ( see Perkins v. 686 Halsey Food Corp., 36 A.D.3d 881, 829 N.Y.S.2d 185).

However, the Supreme Court should not have granted the plaintiffs' motion for leave to enter a default judgment. To establish their entitlement to a default judgment, the plaintiffs were required to submit proof of service of the summons and the complaint, of the facts constituting the claim, and of the default ( see CPLR 3215[f];Levine v. Forgotson's Cent. Auto & Elec., Inc., 41 A.D.3d 552, 553, 840 N.Y.S.2d 598; 599 Ralph Ave. Dev., LLC v. 799 Sterling Inc., 34 A.D.3d 726, 825 N.Y.S.2d 129). The plaintiffs' initial moving papers for leave to enter a default judgment were predicated solely upon their assertion of proper personal service pursuant to CPLR 311(a)(1). They established, prima facie, their entitlement to a default judgment by submitting an affidavit of service attesting that the summons and complaint were delivered to a managing agent of the appellant, a copy of the verified complaint, and an attorney affirmation attesting to the appellant's default in answering the complaint ( see CPLR 311[a][1]; Matone v. Sycamore Realty Corp., 50 A.D.3d 978, 858 N.Y.S.2d 202; McIntyre v. Emanuel Church of God In Christ, Inc., 37 A.D.3d 562, 830 N.Y.S.2d 261; Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343-344, 756 N.Y.S.2d 92). In opposition, the appellant rebutted these allegations and raised issues of fact by submitting an affidavit from its president stating that the person upon whom service allegedly was made was not employed by the appellant, nor authorized to accept serviceof process on behalf of the appellant. The affidavit of the plaintiffs' process server submitted in reply to this opposition raised an additional issue of fact as to whether the recipient, if not a managing agent, was cloaked with an apparent authority to accept service on the appellant's behalf ( see generally Fashion Page v. Zurich Ins. Co., 50 N.Y.2d 265, 271-273, 428 N.Y.S.2d 890, 406 N.E.2d 747; McDonald v. Ames Supply Co., 22 N.Y.2d 111, 115-116, 291 N.Y.S.2d 328, 238 N.E.2d 726; Aguilera v. Pistilli Constr. & Dev. Corp., 63 A.D.3d 765, 766-767, 882 N.Y.S.2d 145; Seda v. Armory Estates, 138 A.D.2d 362, 363-364, 525 N.Y.S.2d 651). Accordingly, a hearing is necessary to determine the issue of whether...