De Herrera v Daza
Index No. 500635/2024
Supreme Court, Kings County
March 17, 2025
2025 NY Slip Op 30851(U)
Francois A. Rivera
Cases posted with a “30000” identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System‘s eCourts Service. This opinion is uncorrected and not selected for official publication.
LEISY MARILIF BONILLA DE HERRERA, Plaintiff, - against - NICOLASA DAZA D/B/A, NICOL‘S UNISEX A/K/A NICOL UNISEX, Defendant.
At an IAS Term, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 17th day of March 2025
DECISION & ORDER
Index No.: 500635/2024
Oral Argument: 1/16/2025
Cal. No.: 6
Ms. Seq. No.: 2
Recitation in accordance with
- Notice of Motion
- Affirmation in Support
- Exhibits A-G
- Affidavit of Service
BACKGROUND
On January 8, 2024, the plaintiff commenced the instant action for damages for personal injury by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk‘s office. The verified complaint contains sixty-seven allegations of fact in support of four denominated causes of action. The verified complaint alleges in some substance that on May 16, 2023, while in the defendant‘s salon to get treatment, the defendant negligently applied certain products to the plaintiff‘s skin and scalp that caused her injury.
By decision and order issued on June 14, 2024, the court denied the earlier motion under motion sequence number one without prejudice because the plaintiff failed to submit an affidavit that the defendant was not in active military service as required under
MOTION PAPERS
The motion papers filed by the plaintiff consist of the notice of motion, the affirmation in support, the affidavit of service, and seven exhibits labeled A-G. Exhibit A is a copy of the summons and complaint. Exhibit B is a copy of the affidavit of service for the summons and complaint. Exhibit C is denominated as a default letter, dated February 16, 2024, along with a copy of the certified mail return receipt. Exhibit D is a copy of a signed certified delivery mail return receipt with a USPS tracking number and a proof of delivery from USPS tracking services. Exhibit E is denominated as a default letter, dated March 1, 2024, along with a scan of an envelope addressed to the defendant, and a copy of a certified mail return receipt. Exhibit F is a copy of a signed certified delivery mail receipt, with a USPS tracking number and a proof of delivery from USPS tracking services. Exhibit G is a copy of the affirmation of military investigation and a document denominated as a Status Report Pursuant to Servicemembers Civil Relief Act.
LAW AND APPLICATION
(a) Default and entry. When a defendant has failed to appear, plead, or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him. . . . (f) Proof. On 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, the default, and the amount due . . . by affidavit made by the party[.] Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party‘s attorney.
“On a motion for leave to enter a default judgment pursuant to
While the absence of a valid nonmilitary service affidavit may be an irregularity and not a jurisdictional defect (see Gantt v. North Shore-LIJ Health Sys., 140 AD3d 418, 418, [1st Dept 2016]), the nonmilitary service affidavit is a requirement under federal law for any civil action in order to protect military personnel from default judgments (see
Here, the affidavit of plaintiff‘s process server established that the commencement papers were personally served on the defendant. The complaint was verified by the plaintiff and, therefore, in accordance with
When the plaintiff filed the earlier motion under sequence number one, the Court found that the plaintiff complied with all requirements under
CONCLUSION
The motion by plaintiff, Leisy Marlif Bonilla De Herrera for an order pursuant to
The plaintiff is to appear for an in-person inquest scheduled for 2:30 p.m. in Part 52 on June 16, 2025.
The foregoing constitutes the decision and order of this Court.
ENTER:
J.S.C.
*Researched and drafted with the assistance of Dyuani Heard, a senior at John Jay College of Criminal Justice