Widman v. Turner

Wilton W. Widman, Jr., Appellant, against Barbara J. Turner, Respondent. Wilton W. Widman, Jr., appellant pro se. Barbara J. Turner, respondent pro se. Appeal from an order of the District Court of Suffolk County, Second District (James F. Matthews, J.), dated October 20, 2015. The order denied plaintiff's motion for leave to enter a default judgment. ORDERED that the order is affirmed, without costs. Plaintiff commenced this action in July of 2015 to recover damages resulting from allegedly defamatory statements made by defendant. After defendant failed to file a timely answer, plaintiff moved for leave to enter a default judgment pursuant to CPLR 3215. Annexed to plaintiff's affidavit in support of the motion was an affidavit of service of the summons and complaint, which set forth that service had been effectuated by "certified mail, signed receipt." The District Court denied the motion on the ground, among others, that the method of service used was not an authorized method of service under CPLR 308. "On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of facts constituting the claims 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]). The District Court [*2]correctly determined that plaintiff failed to show that defendant had been properly served with the summons and complaint in accordance with CPLR 308 (see also Daniels v King Chicken & Stuff, Inc., 35 AD3d 345 [2006]; Levi v Oberlander, 144 AD2d 546 [1988]). Absent valid proof of service, a default judgment pursuant to CPLR 3215 may not be entered (see Levi v Oberlander, 144 AD2d 546). Thus, plaintiff's motion was properly denied. Under the circumstances, plaintiff's remaining contentions need not be considered. Accordingly, the order is affirmed. Iannacci, J.P., Tolbert and Brands, JJ., concur. Paul Kenny Chief Clerk Decision Date: April 03, 2017