| Miterko v Peaslee |
| 2011 NY Slip Op 00492 [80 AD3d 736] |
| January 25, 2011 |
| Appellate Division, Second Department |
| R. Scott Miterko et al., Respondents, v Stuart D. Peaslee etal., Respondents, and Joe Korbl Plumbing & Heating, Inc., Appellant, et al.,Defendants. |
—[*1] Alan B. Blattberg, New York, N.Y., for plaintiffs-respondents.
In an action, inter alia, to recover damages for negligence and breach of contract, thedefendant 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 uponits 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 personaljurisdiction.
Ordered that the order is modified, on the law, by deleting the provision thereof granting theplaintiffs' motion, inter alia, for leave to enter a default judgment against the defendant Joe KorblPlumbing & Heating, Inc., on the issue of liability upon its failure to appear or answer thecomplaint; as so modified, the order is affirmed, without costs or disbursements, and the matteris remitted to the Supreme Court, Kings County, for a hearing on the issue of whether properpersonal service was effected pursuant to CPLR 311 (a) (1) solely for the purpose of determiningthe plaintiffs' motion for leave to enter a default judgment and thereafter a new determination ofthe 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 personaljurisdiction. In opposition to the appellant's cross motion asserting that service of processpursuant to CPLR 311 (a) (1) was not properly effected, the plaintiffs established that validservice was made pursuant to Business Corporation Law § 306 (b) (1) (see Perkins v 686 Halsey Food Corp.,36 AD3d 881 [2007]).
However, the Supreme Court should not have granted the plaintiffs' motion for leave to entera default judgment. To establish their entitlement to a default judgment, the plaintiffs wererequired to submit proof of service of the summons and the complaint, of the facts constitutingthe claim, and of the default (see CPLR 3215 [f]; Levine v Forgotson's Cent. Auto &Elec., Inc., 41 [*2]AD3d 552, 553 [2007]; 599 Ralph Ave. Dev., LLC v 799 SterlingInc., 34 AD3d 726 [2006]). The plaintiffs' initial moving papers for leave to enter adefault judgment were predicated solely upon their assertion of proper personal service pursuantto CPLR 311 (a) (1). They established, prima facie, their entitlement to a default judgment bysubmitting an affidavit of service attesting that the summons and complaint were delivered to amanaging agent of the appellant, a copy of the verified complaint, and an attorney affirmationattesting to the appellant's default in answering the complaint (see CPLR 311 [a] [1]; Matone v Sycamore Realty Corp., 50AD3d 978 [2008]; McIntyre vEmanuel Church of God In Christ, Inc., 37 AD3d 562 [2007]; Bankers Trust Co. ofCal. v Tsoukas, 303 AD2d 343, 343-344 [2003]). In opposition, the appellant rebutted theseallegations and raised issues of fact by submitting an affidavit from its president stating that theperson upon whom service allegedly was made was not employed by the appellant, norauthorized to accept service of 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 towhether the recipient, if not a managing agent, was cloaked with an apparent authority to acceptservice on the appellant's behalf (see generally Fashion Page v Zurich Ins. Co., 50 NY2d265, 271-273 [1980]; McDonald v Ames Supply Co., 22 NY2d 111, 115-116 [1968]; Aguilera v Pistilli Constr. & Dev.Corp., 63 AD3d 765, 766-767 [2009]; Seda v Armory Estates, 138 AD2d 362,363-364 [1988]). Accordingly, a hearing is necessary to determine the issue of whether properpersonal service was effected pursuant to CPLR 311 (a) (1), solely for the purpose of determiningthe plaintiffs' entitlement to a default judgment (see McIntyre v Emanuel Church of God InChrist, Inc., 37 AD3d at 562-563; Garcia v Munseob, 33 AD3d 586 [2006]; Mortgage Access Corp. v Webb, 11AD3d 592, 593 [2004]; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 343-344;Frankel v Schilling, 149 AD2d 657, 659 [1989]).
Since the plaintiffs' assertion that they were entitled to a default judgment based on properservice pursuant to Business Corporation Law § 306 (b) (1) was made in their reply paperssupporting their motion, two days before the return date and the date of the order appealed from,and the appellant did not have an opportunity to respond, the Supreme Court should not haveconsidered that claim in determining the motion (see Matter of Crawmer v Mills, 239AD2d 844, 844-845 [1997]; cf. Matterof Whittaker v New York City Bd. of Educ., 71 AD3d 776, 778 [2010]; Valure v Century 21 Grand, 35 AD3d591, 592 [2006]).
The appellant's contention that the plaintiffs failed to state a cause of action insofar asasserted against it is raised for the first time on appeal and, thus, is not properly before this Court(see McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]; Viafax Corp. v Citicorp Leasing, Inc.,54 AD3d 846, 849 [2008]; Resnick v Doukas, 261 AD2d 375, 376 [1999]).
The parties' remaining contentions have been rendered academic in light of ourdetermination. Rivera, J.P., Chambers, Austin and Sgroi, JJ., concur.