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Hickman v. Beretta

Default Judgment in Injury Action Granted Against One Defendant But Denied Against Another

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Plaintiff’s Notice of Motion, Affirmation, Affidavit & Exhibits     1DECISION AND ORDER

*1 Motions seeking to enter or vacate default judgments are routinely made before this and other courts. The requirements to obtain a default judgment are well known and often repeated — there is no shortage of caselaw in this area. Occasionally though, circumstances present themselves that trigger a re-examination of what is thought to be a well-established area of the law and cautions against the simple rote application of familiar rules.This case presents such circumstances. Plaintiff seeks a default judgment against two defendants who purportedly were served pursuant to CPLR §308(2). But plaintiff provides no facts to support the assertion that the location at which the pleadings were left was one of the defendant’s “actual place of business, dwelling place or usual place of abode,” as required by the statute. Instead, plaintiff relies upon a conclusory assertion in this regard contained in her process server’s affidavit — an assertion inconsistent with plaintiff’s summons.It is often said that a process server’s affidavit constitutes prima facie evidence of proper service. See, e.g., Youngstown Tube Co. v. Russo, 120 A.D.3d 1409 (2d Dept. 2014). This case highlights the dangers of such a sweeping generality, particularly where a default judgment is sought following purported service pursuant to CPLR §308(2). It is

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