        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

814
CA 15-00049
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


INTERBORO INSURANCE COMPANY,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

FATIMA TAHIR, ET AL., DEFENDANTS,
BUSHRA NAZ, CLIFFSIDE PARK IMAGING &
DIAGNOSTIC CENTER, AND KIMBA MEDICAL
SUPPLY, LLC, DEFENDANTS-RESPONDENTS.


LAW OFFICE OF JASON TENENBAUM, P.C., GARDEN CITY (JASON TENENBAUM OF
COUNSEL), FOR PLAINTIFF-APPELLANT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Onondaga County (Deborah H. Karalunas, J.), entered April 24,
2014. The order and judgment, among other things, denied that part of
plaintiff’s motion for leave to enter a default judgment against
defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center and
Kimba Medical Supply, LLC.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously modified on the law by granting that part of the motion
for leave to enter a default judgment against defendant Cliffside Park
Imaging & Diagnostic Center and as modified the order and judgment is
affirmed without costs.

     Memorandum: Plaintiff appeals from an order and judgment that,
inter alia, denied its motion pursuant to CPLR 3215 for leave to enter
a default judgment against defendants Bushra Naz, Cliffside Park
Imaging & Diagnostic Center (Cliffside), and Kimba Medical Supply, LLC
(Kimba). Defendants Naz and Fatima Tahir made claims for no-fault
benefits arising from injuries they allegedly sustained in an
automobile accident covered by an insurance policy issued to
plaintiff’s policyholder. Naz and Tahir assigned their rights to
collect no-fault benefits to certain medical providers, including
Cliffside and Kimba, each of which made claims for services rendered
to Naz and Tahir as a result of the alleged accident. Plaintiff
disclaimed coverage based on the failure of Naz and Tahir to provide
timely written notice of the accident pursuant to the insurance
policy, and thereafter commenced this action seeking a declaration
that there is no coverage. Plaintiff subsequently moved for leave to
enter a default judgment against each defendant on the ground that the
summons and verified complaint had been properly served and defendants
did not timely serve an answer or otherwise appear in the action.
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                                                         CA 15-00049

Supreme Court denied the motion with respect to Naz, Cliffside, and
Kimba, and otherwise granted the motion.

      “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 the facts constituting its 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; see
CPLR 3215 [f]). Here, plaintiff submitted sufficient proof of the
facts constituting its claim through the affidavit of a claims
representative establishing that Tahir and Naz failed to satisfy the
notice requirement of the insurance policy, which constitutes a
failure to comply with a condition precedent and vitiates the contract
as a matter of law (see generally New York & Presbyt. Hosp. v
Country-Wide Ins. Co., 17 NY3d 586, 592-593; Great Canal Realty Corp.
v Seneca Ins. Co., Inc., 5 NY3d 742, 743; Matter of Progressive
Northeastern Ins. Co. [Heath], 41 AD3d 1321, 1322). Plaintiff also
submitted proof of default in the form of “an affirmation from its
attorney regarding . . . defendant[s’] default in appearing and
answering” (599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726,
726).

     We further conclude, however, that plaintiff submitted sufficient
proof of service of process, the remaining required element of proof,
only with respect to Cliffside, a corporation, and thus the court
erred in denying plaintiff’s motion to that extent. We therefore
modify the order and judgment accordingly. Pursuant to CPLR 311 (a),
“personal service on a corporation may be accomplished by, inter alia,
delivering the summons ‘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’ ” (Rosario v
NES Med. Servs. of N.Y., P.C., 105 AD3d 831, 832). Here, “[t]he
process server’s affidavit, which stated that the corporate defendant
was personally served by delivering a copy of the summons and
complaint to its ‘[authorized] agent’ and provided a description of
that person, constituted prima facie evidence of proper service
pursuant to CPLR 311 (a) (1)” (McIntyre v Emanuel Church of God In
Christ, Inc., 37 AD3d 562, 562; see Miterko v Peaslee, 80 AD3d 736,
737; see generally Halas v Dick’s Sporting Goods, 105 AD3d 1411, 1413-
1414).

     Contrary to plaintiff’s contention, the court properly denied its
motion with respect to Naz, who was allegedly served by the “nail and
mail” method of service. CPLR 308 (4) allows that method of service
only “when service pursuant to CPLR 308 (1) and (2) cannot be made
with due diligence” (Austin v Tri-County Mem. Hosp., 39 AD3d 1223,
1224) and, although a process server’s affidavit of service ordinarily
constitutes prima facie evidence of proper service, here the process
server’s affidavit submitted by plaintiff fails to demonstrate the
requisite due diligence (see D’Alesandro v Many, 137 AD2d 484, 484;
see generally Matter of El Greco Socy. of Visual Arts, Inc. v
Diamantidis, 47 AD3d 929, 929-930). The affidavit failed to indicate
whether there was an attempt to effectuate service at Naz’s actual
                                 -3-                           814
                                                         CA 15-00049

“dwelling place or usual place of abode” (CPLR 308 [4]), and   there is
no indication that the process server made genuine inquiries   to
ascertain Naz’s actual residence or place of employment (see   Prudence
v Wright, 94 AD3d 1073, 1074; Earle v Valente, 302 AD2d 353,   353-354).

     We also reject plaintiff’s contention that the court erred in
denying its motion with respect to Kimba, a limited liability company.
Plaintiff alleged that Kimba was served pursuant to Limited Liability
Company Law § 304. That statute is substantively identical to
Business Corporation Law § 307, and both statutes apply to foreign
business entities not authorized to do business in New York. We
conclude that, just as strict compliance with the procedures set forth
in Business Corporation Law § 307 is required pursuant to Flick v
Stewart-Warner Corp. (76 NY2d 50, 54-55, 57, rearg denied 76 NY2d
846), strict compliance is likewise required for the procedures set
forth in Limited Liability Company Law § 304 (see Elzofri v American
Express Co., 29 Misc 3d 898, 901). Here, plaintiff failed to
establish that it strictly complied with the filing requirements of
Limited Liability Company Law § 304 (e).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
