After oral argument, defendant's motion to vacate (Mot. Seq. No. 2) is granted and the default judgment is vacated. Plaintiff's motion to extend time (Mot. Seq. No. 3) is denied as academic.

A brief overview of the undisputed facts is warranted. This premises liability action was commenced by the filing of a Summons and Complaint on June 18, 2019. On August 1, 2019, defendant was served at 440 Kent Avenue, Apt 1C, Brooklyn, New York pursuant to CPLR § 308 (2), by delivery of the Summons and Complaint to the doorman at that address, followed by the required mailings on August 15, 2019. Although proof of such service should have been filed on or before September 4, 2019 (see CPLR § 308 [2]), plaintiff filed its affidavit of service on November 5, 2019.

Plaintiff filed a motion for a default judgment pursuant to CPLR § 3215 on July 1, 2020. On November 18, 2020, the Honorable Richard Montelione granted plaintiff's application for an adjournment of the motion and leave to supplement its papers by serving and filing an affidavit of non-military service. Plaintiff then filed several documents to show that defendant was not in the military, and served copies of those papers via priority mail to defendant at a to Hallandale Beach address in Florida.^[FN1] On April 1, 2021, plaintiff was granted a default against defendants. After an inquest, on January 24, 2023, plaintiff was awarded a monetary judgment in the amount of $5,280,519.40.

On July 3, 2023, defendant filed the instant motion to vacate the default judgment. Defendant has advanced several arguments in support of the motion. First, defendant claims improper service. Specifically, Eugene Simonetti, Jr., who is named both individually and as trustee, alleges that on August 1, 2019, when service was made upon him at the Kent Avenue address, he was no longer living at that address, having moved to Florida. In support of this argument, he has submitted a Florida driver's license and voter registration showing that by June 10, 2019, he had indeed moved to the Hallandale Beach address in Florida. Mr. Simonetti also claims to have not had any knowledge of this lawsuit until May 2023.

As for a meritorious defense, Mr. Simonetti claims that he personally did not own the premises at issue, and that the trust and family regularly maintained the sidewalk flag which is alleged to have caused plaintiff's injuries. Further, the only flag that may have been at issue was affected by New York City tree roots which the family was not permitted to fix, and which they had complained about to the City of New York via 311. Finally, defendant argues that the default judgment was improperly entered as the affidavit of service was filed later than permitted under CPLR § 308 (2).

Plaintiff argues that it properly served defendants, as 440 Kent Avenue was the last known address of defendant. Additionally, in several documents that Mr. Simonetti filed with governmental entities, he acknowledged still residing at that address, indicating that at the least, Mr. Simonetti maintained two residences. Further, at some point plaintiff discovered defendant's Hallandale Beach address and several of the mailings and filings in this case were sent to that address, providing defendant with notice of this action. Finally, plaintiff argued that in granting the default judgment, Judge Montelione "appropriately concluded that a default should be granted . . . and it is inappropriate for the defendant to resurrect" arguments relating to the timeliness of the filing of the affidavit of service.^[FN2]

Preliminarily, this Court finds that Mr. Simonetti has established that by August 1, 2019, he had indeed moved to Florida and established residency there (enough to obtain a driver's license and voter registration). However, defendant has not established that he also no longer resided at the Kent Avenue address. Indeed, Mr. Simonetti used the Kent Avenue Address in the filings with New York City. Similarly, Mr. Simonetti did not affirmatively state in his affidavit in support of this motion that he no longer maintained any form of residency at 440 Kent Avenue by August 2019. The Second Department has consistently held that for the purpose of service of process, individuals can have multiple addresses, and that service pursuant to CPLR § 308 (2) may be affected at a non-primary address (Krechmer v Boulakh, 277 AD2d 288 [2d Dept 2000]; Washington Mut. Bank v Murphy, 127 AD3d 1167 [2d Dept 2015]). Thus, while it is certainly possible that Mr. Simonetti moved to Florida and established his primary residence there, and that as a result he did not have notice of this action, service would still be effective as he has not properly stated that he was served at a non-current residence. Accordingly, service was proper at the Kent Avenue address, and defendant has not raised a traverse issue regarding service.

However, the question of whether to vacate the default judgment also must consider whether the judgment was entered properly. The matters of First Fed. Sav. & Loan Assn. of Charleston v Tezzi (164 AD3d 758 [2d Dept 2018]) and Miller Greenberg Mgt. Group, LLC v [*2]Couture (193 AD3d 1273 [3d Dept 2021]) are directly relevant to the inquiry here. First, it is clear that the failure to timely file the proof of service as required by CPLR § 308 (2) was not a jurisdictional defect but rather a procedural deficiency. A Court, on motion or sua sponte, may exercise its discretion and deem such an affidavit timely filed pursuant to CPLR § 2004. Here, plaintiff did not so move or seek a curative order, and the Court did not issue an order deeming the affidavit of service timely filed. "[T]herefore, defendant's time to answer never began to run such that the resulting default judgment was a nullity requiring vacatur" (Miller Greenberg Mgt. Group, LLC, 193 AD3d at 1275).

To the extent that plaintiff argues that Judge Montelione implicitly exercised the Court's discretion and deemed the affidavit of service timely filed, such argument would be difficult as a practical matter. As made clear in First Fed. Sav. & Loan Assn. of Charleston, when exercising such discretion a court must do so upon such terms as may be just, and only where a substantial right of a party is not prejudiced (164 AD3d at 760). The First Federal Court specifically required that a copy of the decision and order deeming the filing timely must be served on a defendant and that the defendant be given additional time to appear (id., see also Khan v Hernandez, 122 AD3d 802 [2d Dept 2014]). Here, there was no written order served on defendants deeming the affidavit of service timely filed, nor affording them additional time to answer or appear. Accordingly, as the default judgment was not proper and in fact, was a nullity, it is vacated (Miller Greenberg Mgt. Group, 193 AD3d at 1275). It is therefore

ORDERED, that the motion to vacate the default judgment is granted; and it is further

ORDERED, that the default judgment is hereby vacated; and it is further

ORDERED, that the defendant has not raised a traverse issue and has not established that service at 440 Kent Avenue was improper as a second residence, and it is further

ORDERED, that pursuant to CPLR § 2004 the filing of proof of service on November 5, 2019 is hereby deemed timely, and it is further

ORDERED, that defendant has thirty days from entry of this Order to serve an Answer or otherwise respond to the Complaint herein, and it is further

ORDERED, that plaintiff's motion to extend time to serve is denied as moot, and it is further

ORDERED, that this matter be reassigned to a random IAS part.

This constitutes the decision and order of the Court.