Preview
INDEX NO. 154834/2018
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 09/19/2018
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LILLIAN WAN PART 18
Justice
X INDEX NO. 154834/2018
NATIONAL UNION FIRE INSURANCE COMPANY OF
PITTSBURGH, PA, AS ASSIGNEE AND SUBROGEE OF MOTION DATE 9/18/2018
CENTRURY 21 DEPARTMENT STORES, LLC,
MOTION SEQ. NO. 001
Plaintiff,
-Ve
MUHAMMED NADEEM, ISMAIL KARIM
DECISION AND ORDER
Defendant.
X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12,
13, 14, 15, 16, 17, 18, 19, 20
were read on this motion to/for JUDGMENT - DEFAULT
Upon the foregoing documents, it is ordered that the plaintiff's motion seeking a default
judgment against the defendants is DENIED.
Plaintiff, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,
PA, as assignee and subrogee of Century 21 Department Stores, LLC, (“National Union”) moves
for an Order, pursuant to CPLR §3215, granting plaintiff entry of default judgment against
defendants MUHAMMAD NADEEM and ISMAIL KARIM, jointly and severally, and awarding
the sum of no less than $623,164.29, along with punitive damages, interest from October 19,
2012, attorneys’ fees, costs, and filing fees on the ground that defendants have failed to file an
answer or otherwise appear in this matter. Neither defendant has opposed the instant motion or
otherwise appeared or answered herein.
CPLR §3215 states that a default judgment will be granted where the movant provides
the Court with proof of service of the summons and complaint; proof of the claim; and proof of
the default. In the instant case, the unsigned affidavit of service of Michael Marra is defective,
and therefore insufficient to provide the Court with proof of service of the summons and
complaint upon defendant Muhammad Nadeem, as required by CPLR §3215(f).
The complaint in this action was filed with this Court on May 23, 2018. The affidavit of
service upon the defendant Muhammed Nadeem is defective on its face. While the “affidavit of
service” contains the notary’s signature and stamp and is dated May 30, 2018, there is no
signature of the affiant process server, Michael Marra. The unsigned affidavit of service states
that defendant Nadeem was personally served with the summons and complaint at his residence
154834/2018 NATIONAL UNION FIRE vs. NADEEM, MUHAMMED Page 1 of 2
Motion No. 001
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INDEX NO. 154834/2018
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 09/19/2018
on May 24, 2018. (NYSECF Doc. No. 11) However, the Court cannot consider this a proper
affidavit under CPLR §306(d) without the process server’s signature on the affidavit. As appears
from the sworn affidavit of service of defendant Janice Quadara (NYSCEF Doc. Nos 12), the
defendant, Ismail Karim, was personally served with the summons and complaint at his
residence on May 29, 2018.
According to the Affirmation of Scott A. Levin, Esq., the defendants were served with
additional notice, pursuant to CPLR §3215(g)(3), by mailing the summons and complaint to each
defendant at their place of residence, on June 15, 2018 (NYSECF Doc. Nos. 13, 14). However,
the service of an additional notice of the summons and complaint by mail upon defendant
Nadeem, pursuant to CPLR §3215(g)(3), does not cure the defective service of the initial
summons and complaint, and the plain language of the statute makes clear that subsection (g)(3)
is only applicable to a money action in contract. Therefore, as the affidavit is defective, the
motion for a default judgment as against defendant Muhammad Nadeem is denied.
Even though there is a remaining defendant, taken together, the motion seeking a default
judgment against both defendants, jointly and severally, is defective and as such, is hereby
denied.
Accordingly, it is hereby ORDERED that plaintiff's motion for an order of default
judgment, pursuant to CPLR §3215, is DENIED without prejudice to renew upon proper papers.
This constitutes the Decision and Order of the Court.
9/18/2018
DATE
Me LILLIAN WAN, J.S.@.
Men
CHECK ONE: CASE DISPOSED X | NON-FINAL DISPOSITION
GRANTED [x] DENIED GRANTED IN PART O OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFERIREASSIGN FIDUCIARY APPOINTMENT OJ REFERENCE
154834/2018 NATIONAL UNION FIRE vs. NADEEM, MUHAMMED.
Motion No. 001
Page 2 of 2
2 of 2
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INDEX NO. 154834/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 09/19/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LILLIAN WAN PART 18 Justice X INDEX NO. 154834/2018 NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, AS ASSIGNEE AND SUBROGEE OF MOTION DATE 9/18/2018 CENTRURY 21 DEPARTMENT STORES, LLC, MOTION SEQ. NO. 001 Plaintiff, -Ve MUHAMMED NADEEM, ISMAIL KARIM DECISION AND ORDER Defendant. X The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for JUDGMENT - DEFAULT Upon the foregoing documents, it is ordered that the plaintiff's motion seeking a default judgment against the defendants is DENIED. Plaintiff, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, as assignee and subrogee of Century 21 Department Stores, LLC, (“National Union”) moves for an Order, pursuant to CPLR §3215, granting plaintiff entry of default judgment against defendants MUHAMMAD NADEEM and ISMAIL KARIM, jointly and severally, and awarding the sum of no less than $623,164.29, along with punitive damages, interest from October 19, 2012, attorneys’ fees, costs, and filing fees on the ground that defendants have failed to file an answer or otherwise appear in this matter. Neither defendant has opposed the instant motion or otherwise appeared or answered herein. CPLR §3215 states that a default judgment will be granted where the movant provides the Court with proof of service of the summons and complaint; proof of the claim; and proof of the default. In the instant case, the unsigned affidavit of service of Michael Marra is defective, and therefore insufficient to provide the Court with proof of service of the summons and complaint upon defendant Muhammad Nadeem, as required by CPLR §3215(f). The complaint in this action was filed with this Court on May 23, 2018. The affidavit of service upon the defendant Muhammed Nadeem is defective on its face. While the “affidavit of service” contains the notary’s signature and stamp and is dated May 30, 2018, there is no signature of the affiant process server, Michael Marra. The unsigned affidavit of service states that defendant Nadeem was personally served with the summons and complaint at his residence 154834/2018 NATIONAL UNION FIRE vs. NADEEM, MUHAMMED Page 1 of 2 Motion No. 001 1 of 2 INDEX NO. 154834/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 09/19/2018 on May 24, 2018. (NYSECF Doc. No. 11) However, the Court cannot consider this a proper affidavit under CPLR §306(d) without the process server’s signature on the affidavit. As appears from the sworn affidavit of service of defendant Janice Quadara (NYSCEF Doc. Nos 12), the defendant, Ismail Karim, was personally served with the summons and complaint at his residence on May 29, 2018. According to the Affirmation of Scott A. Levin, Esq., the defendants were served with additional notice, pursuant to CPLR §3215(g)(3), by mailing the summons and complaint to each defendant at their place of residence, on June 15, 2018 (NYSECF Doc. Nos. 13, 14). However, the service of an additional notice of the summons and complaint by mail upon defendant Nadeem, pursuant to CPLR §3215(g)(3), does not cure the defective service of the initial summons and complaint, and the plain language of the statute makes clear that subsection (g)(3) is only applicable to a money action in contract. Therefore, as the affidavit is defective, the motion for a default judgment as against defendant Muhammad Nadeem is denied. Even though there is a remaining defendant, taken together, the motion seeking a default judgment against both defendants, jointly and severally, is defective and as such, is hereby denied. Accordingly, it is hereby ORDERED that plaintiff's motion for an order of default judgment, pursuant to CPLR §3215, is DENIED without prejudice to renew upon proper papers. This constitutes the Decision and Order of the Court. 9/18/2018 DATE Me LILLIAN WAN, J.S.@. Men CHECK ONE: CASE DISPOSED X | NON-FINAL DISPOSITION GRANTED [x] DENIED GRANTED IN PART O OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFERIREASSIGN FIDUCIARY APPOINTMENT OJ REFERENCE 154834/2018 NATIONAL UNION FIRE vs. NADEEM, MUHAMMED. Motion No. 001 Page 2 of 2 2 of 2