U.S. Specialty Insurance v. Lennon
Justice F. Dana Winslow
Plaintiffs sought to recover amounts allegedly owed under a contract between Affordable Bails, as attorney-in-fact for U.S. Specialty Insurance, and defendants. Affordable posted a criminal bail bond of $20,000 on behalf of Carlos Lennon, and moved for a default judgment based on defendants' failure to answer or appear in the action. The court found plaintiffs failed to sufficiently set for a prima facie case on the merits, noting CPLR 3215 did not contemplate that default judgments were to be "rubber-stamped" once jurisdiction and a failure to appear were shown. It stated the affidavit of service attesting to service on Carlos under §308(2) by service on Edward raised issues regarding proper serviceit failed to identify Edward as a person of suitable age and discretion, and his relationship to Carlos; and there were concerns if the Commack address was Carlos' actual place of business, dwelling place or usual abode, especially based on Affordable's allegation it was unable to locate Carlos. The court stated plaintiffs could not maintain two divergent positions simultaneouslythat they could not locate Carlos, yet served him at his actual place of business, dwelling or abode. Thus, it denied plaintiffs' motion.