DECISION AND ORDER In this action for breach of contract, plaintiffs move seeking an order pursuant to CPLR §3215(f) granting them a default judgment against defendants on grounds that defendants were duly served with the summons and complaint and have failed to answer and because the claims alleged have merit. The instant motion is unopposed. For the reasons that follow hereinafter, plaintiffs’ motion is denied. The instant action is for breach of contract and damages arising therefrom. The scant endorsed complaint alleges “Breach of Contract; Failure to Pay for Services Rendered; Failure to Provide Repairs; Loss of Time from Work for $18,000.00 — with interest from 08/23/19.” Plaintiffs’ motion seeking an order granting it a default judgment against defendants is denied. On this record, plaintiff has failed to establish that it duly served defendant 2510 HONE AVENUE, INC. (corporate defendant) with the summons and endorsed complaint, the party bound by the agreement between the parties. Accordingly, the only party as to which plaintiffs establish a meritorious defense has never been served and the Court has no personal jurisdiction over it. Pursuant to CPLR §3215[f], “[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint…and proof of the facts constituting the claim” (Pampalone v. Giant Building Maintenance, Inc., 17 AD3d 556, 557 [2d Dept 2005] [Default judgment granted once plaintiff submitted proof that defendant was served with the summons and complaint and an affidavit of the facts constituting the claim.]; Andrade v. Ranginwala, 297 AD2d 691, 691-692 [2d Dept 2002]). Once the requisite showing has been made, a motion for a default judgment must be granted unless the defendant can establish a meritorious defense to the claims made, a reasonable excuse for the delay in interposing an answer, and that the delay in interposing an answer has in no way prejudiced the plaintiff in the prosecution of the case (Buywise Holding, LLC v. Harris, 31 AD3d 681, 683 [2d Dept 2006]; Giovanelli v. Rivera, 23 AD3d 616, 616 [2d Dept 2005]). Pursuant to CPLR §3215(a), “[i]f the plaintiff’s claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default.” Accordingly, if the damages sought are not for a sum certain or for an amount which can be made certain, a default judgment is only as to liability, where the defendant admits all traversable allegations in the complaint as to liability only (Rokina Optical Co., Inc. v. Camera King, Inc., 63 NY2d 728, 730 [1984]; Arent Fox Kinter Plotkin & Kahn, PLLC v. Gmbh, 297 AD2d 590, 590 [2d Dept. 2002]). A trial on inquest must be held wherein the defendant is afforded an opportunity to present and try a case in mitigation of damages (Rokina Optical Co., Inc. at 730; Arent Fox Kinter Plotkin & Kahn, PLLC at 590]). The term “sum certain” contemplates a situation where once liability has been established, “there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments” (Reynolds Securities, Inc. v. Underwriters Bank and Trust Company, 44 NY2d 568, 572 [1978]). With regard to establishing the merits of the claim, plaintiff may use an affidavit or a complaint verified by the plaintiff (Mullins v. DiLorenzo, 199 AD2d 218, 220 [1st Dept 1993]; Gerhardt v. J & R Salacqua Contr. Co., Inc., 181 AD2d 719, 720 [2d Dept 1992]). Additionally, plaintiff can also use deposition testimony (Empire Chevrolet Sales Corporation v. Spallone, 304 AD2d 708, 709 [2d Dept 2003]); Ramputi v. Timko Contracting Corp., 262 AD2d 26, 27 [1st Dept 1999]). While generally, a plaintiff cannot establish the merits of his or her claims using a complaint verified by an attorney (Deleon v. Sonin & Genis, 303 AD2d 291, 292 [1st Dept 2003]); Juseinoski v. Board of Education of the City of New York, 15 AD3d 353, 356 [2d Dept 2004]), a complaint verified by an attorney, where the attorney has personal knowledge of facts constituting the claim, is sufficient to establish the merits of a plaintiff’s claim (State Farm Mutual Automobile Insurance Company v. Rodriguez, 12 AD3d 662, 663 [2d Dept 2004]; Martin v. Zangrillo, 186 AD2d 724, 724 [2d Dept 1992]). CPLR §3215(c) states that [i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action. Thus, a party who fails to take a default within a year after said default could have been taken, has abandoned his case and the remedy is dismissal (Kay Waterproofing Corp. v. Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2d Dept 2005]; Geraghty v. Elmhurst Hosp. Center of New York City Health and Hospitals Corp., 305 AD2d 634, 634 [2d Dept 2003]). Significantly, pursuant to CPLR §320(a), generally “[a]n appearance shall be made within twenty days after service of the summons.” In order to avoid dismissal under this section, a plaintiff must offer a reasonable excuse for the failure to timely move for a default and must also demonstrate the merits of the action (Truong v. All Pro Air Delivery, Inc., 278 AD2d 45, 45 [1st Dept 2000]; LaValle v. Astoria Construction & Paving Corp., 266 AD2d 28, 28 [1st Dept 1999]; State Farm Mutual Automobile Insurance Company v. Rodriguez, 12 AD3d 662, 663 [2d Dept 2004]). Notably, in the absence of a motion seeking dismissal for the failure to timely seek a default, a court has the power to dismiss an action sua sponte (Perricone v. City of New York, 62 NY2d 661, 563 [1984]; Winkelman v. H & S Beer and Soda Discounts, Inc., 91 AD2d 660, 661 [2d Dept 1982]). In support of the instant motion, plaintiffs submit an affidavit of service, which establishes that on October 31, 2019, defendant KEVIN BLAKE (Blake) was served with the summons and endorsed complaint when a copy of the same was left with Opal Foreman, a person of suitable age and discretion at the premises described as Blakes’ home and located at 2510 Hone Avenue, Bronx, NY 10469. The affidavit also states that the summons and complaint were then mailed to Blake at the foregoing address that very day. An entry stamp on the affidavit evinces that it was filed with this Court on the foregoing date. Plaintiffs also submit an affidavit by plaintiff TIFFANY ANDERSON (Anderson) wherein she alleges that this action has its nexus in a contract appended to her affidavit. The foregoing contract was for the purchase by plaintiffs of a home from defendants. Anderson alleges that defendants breached the instant contract by not delivering the premises in working order. More specifically, Anderson alleges that the appliances and the plumbing in the home were not working when the home was delivered after closing. As a result of the foregoing, Anderson alleges damages exceeding $18,000. A review of the contract appended to Anderson’s affidavit, which she incorporates by reference therein, evinces that it was between plaintiffs and the corporate defendant. Per the agreement, plaintiff’s agreed to purchase the premises located at 415 S 1st Avenue, Mount Vernon, NY 10550 from the corporate defendant. Blake executes the contract for the corporate defendant. Based on the foregoing, plaintiffs fail to establish entitlement to a default judgment. As noted above, pursuant to CPLR §3215[f], “[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint…and proof of the facts constituting the claim.” Thus, a motion made thereunder should be granted when the plaintiff establishes that the defendant was served with process and that the claims alleged have merit (Pampalone at 557; Andrade at 691-692). Here, while plaintiffs establish that Blake was served with process, they fail to establish that the corporate defendant — the only entity against whom they can enforce the agreement between the parties — was served with process. Not only do plaintiffs fail to provide proof of service upon the corporate defendant, but a review of the Court’s file indicates that the corporate defendant was served pursuant to CPLR §308(2) in the same manner and at the same time as Blake. This, of course, is improper service since pursuant to CPLR §311(1), service on a corporation requires, inter alia, the delivery of the summons and complaint to “an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service.” Here, the affidavit of service in the Court’s file is bereft of any indication that Opal Foreman, upon whom the summons and complaint was served, falls within the ambit of the list of individuals listed above. This is fatal to the instant motion since the result is a record establishing a meritorious cause of action against a defendant over whom the Court has no personal jurisdiction — the corporate defendant — rather than the defendant over whom the Court does — Blake. The essential elements in an action for breach of contract “are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her contractual obligations, and damages resulting from the breach” (Dee v. Rakower, 112 AD3d 204, 209 [2d Dept 2013]; Elisa Dreier Reporting Corp. v. Global Naps Networks, Inc., 84 AD3d 122, 127 [2d Dept 2011]; Brualdi v. IBERIA Lineas Aeraes de España, S.A., 79 AD3d 959, 960 [2d Dept 2010]; JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803 [2d Dept 2010]; Furia v. Furia, 116 AD2d 694, 695 [2d Dept 1986]). Generally, a breach of contract action only exists against a party to the relevant agreement. Stated differently, “only parties in privity of contract may enforce terms of the contract” (May v. U.S. HIFU, LLC, 98 AD3d 1004, 1006 [2d Dept 2012]; Freeford Ltd. v. Pendleton, 53 AD3d 32, 38 [1st Dept 2008]). Since the affidavit of merit and the agreement appended thereto clearly establish that Blake is not a party to the agreement giving rise to this action, although plaintiffs establish service of process upon Blake, they fail to establish that they have a meritorious cause of action against him. Any assertion that Blake’s signature on behalf of the corporate defendant makes him a party to the contract is unavailing. Indeed, “[c]orporations, of course, are legal entities distinct from their managers and shareholders and have an independent legal existence. Ordinarily, their separate personalities cannot be disregarded (Port Chester Elec. Const. Co. v. Atlas, 40 NY2d 652, 656 [1976]; R.T. Subway Const. Co. v. City of New York, 259 NY 472, 487 [1932] ["A corporation is a creature of the law, endowed with a personality separate and distinct from the personality of those who own its stock and elect its directors. The corporation in respect of corporate property and rights is entirely distinct from the stockholders who are the ultimate or equitable owners of its assets" (internal quotation marks omitted).]). It is hereby ORDERED that plaintiffs serve a copy of this Decision and Order with Notice of Entry upon defendants within thirty (30) days hereof. Dated: March 11, 2021
