| Dupps v Betancourt |
| 2012 NY Slip Op 06915 [99 AD3d 855] |
| October 17, 2012 |
| Appellate Division, Second Department |
| Kristina Dupps et al., Appellants, v Jessica Betancourt etal., Respondent, et al., Defendants. |
—[*1] Zeichner Ellman & Krause, LLP, New York, N.Y. (Steven S. Rand and Michael E. Sims ofcounsel), for respondent Bank of New York.
In an action, inter alia, to set aside a transfer of real property, the plaintiffs appeal from anorder of the Supreme Court, Nassau County (Feinman, J.), dated March 10, 2011, which deniedtheir motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendantsJessica Betancourt, Alexis Samuels, Commerce America Banking Center, and Bank of NewYork, and, sua sponte, directed the dismissal of the complaint insofar as asserted against thosedefendants.
Ordered that on the Court's own motion, the notice of appeal from so much of the order as,sua sponte, directed the dismissal of the complaint insofar as asserted against the defendantsJessica Betancourt, Alexis Samuels, Commerce America Banking Center, and Bank of NewYork, is deemed an application for leave to appeal from that portion of the order, and leave toappeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereof which,sua sponte, directed the dismissal of the complaint insofar as asserted against the defendantsJessica Betancourt, Alexis Samuels, Commerce America Banking Center, and Bank of NewYork, and (2) by deleting the provision thereof denying that branch of the motion which waspursuant to CPLR 3215 for leave to enter a default judgment against the defendant JessicaBetancourt, and substituting therefor a provision granting that branch of the motion; as somodified, the order is affirmed, without costs or disbursements.
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant isrequired to submit proof of service of the summons and complaint, proof of the facts constitutingthe claim, and proof of the defaulting party's default in answering or appearing" (Atlantic Cas. Ins. Co. v RJNJ Servs.,Inc., 89 AD3d 649, 651 [2011]; see CPLR 3215 [f]). Here, on the plaintiffs'motion for leave to enter a default judgment, the plaintiffs submitted all of these things withrespect to the defendant Jessica Betancourt. Accordingly, the Supreme Court should have grantedthat branch of the plaintiffs' motion which was for leave to enter a default judgment againstBetancourt, and should not have, sua sponte, directed the dismissal of the complaint insofar asasserted against Betancourt.[*2]
The Supreme Court properly determined that theplaintiffs failed to make a prima facie showing that they properly served the defendants AlexisSamuels, Commerce America Banking Center, and Bank of New York with copies of thesummons and complaint (see CPLR 308 [4]; 311 [a] [1]; Prudence v Wright, 94 AD3d1073, 1074 [2012]; Gray vGiannikios, 90 AD3d 836, 837 [2011]; Leviton v Unger, 56 AD3d 731, 732 [2008]). Accordingly, theSupreme Court properly denied those branches of the plaintiffs' motion which were for leave toenter a default judgment against those defendants. However, because improper service of thesummons and complaint is a defense that may be waived (see CPLR 3211 [e]), theSupreme Court should not have, sua sponte, directed the dismissal of the complaint insofar asasserted against those defendants. Skelos, J.P., Leventhal, Chambers and Lott, JJ., concur.