SHORT FORM ORDER: SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIAL/IAS, PART 6 ADVANTA BANK CORI NASSAU COUNTY Plaintiff, MOTION DATE: 1/10/08 MOTION SEQ. NO.: 01 -against- INDEX NO.: 1072/2008 ALL WAYS CONSTRUCTION CORP. and RICHARD CABAN, Defendants. ‘The following papers read on this motion (numbered 1): Notice of Motion ‘The Court automatically adjourns all motions that are submitted without opposition for one month, whether or not there was either an administrative delay or excusable neglect. Such adjournment is made without prejudice to the moving party to have the merits of such an adjournment considered in the event that there is a subsequent submission. This is an action to recover the sum of $16,886.09 plus interest from June 2008, allegedly due on a business credit card issued to defendant ALL WAYS CONSTRUC- TION CORP. (“ALL WAYS”) and guaranteed by defendant RICHARD CABAN (CABAN”). Plaintiff moves for a default judgment pursuant to CPLR §3215 against ALL WAYS and for summary judgment pursuant to CPLR §3212 against CABAN. In support of its motion, plaintiff has submitted a copy of the Summons and Complaint filed on June 16, 2008, the Answer of CABAN dated July 23, 2008, counsel’s Memorandum of Law, and the Affidavit in Support of Gianine D. Albright, plaintiff's “Litigation Coordinator,” sworn to on September 26, 2008 (the “Albright A ffida ), and exhibits thereto.With respect to defendant ALL WAYS, the Court notes that plaintiff has not submitted proof of service of the Summons and Complaint. Although the Albright Affidavit attests generally to service upon both defendants, such testimony is not based upon first-hand knowledge, and otherwise does not constitute proper proof of service. See CPLR §306. Attached to the Summons and Complaint [Motion Exhibit A] is a strip of paper which purports to describe attempted service upon ALL WAYS at 84 Madison Street, Lynbrook, NY 11563. This, too, is defective, insofar as it is unsigned and incomplete, and the motion papers show no basis for service at the designated address. Further, it states that the unnamed deponent was unable to execute service because the defendant is not listed with the New York Secretary of State. This is erroneous. The New York Department of State, Division of Corporations Website lists “All Way's Construction Corporation” as an active entity, registered in New York. Plaintiff's inability to effect proper service is more attributable to inadequate diligence than to impossibility. Absent proof of service of the Summons and Complaint, the application for a default judgment against ALL WAYS pursuant to CPLR §3215 must be denied. CPLR §3215(). With respect to defendant CABAN, the Court notes that plaintiff has failed to submit proper proof of service, and CABAN has raised lack of personal jurisdiction as an affirmative defense in his Answer. [Motion Exhibit B.] However, insofar as CABAN has failed to move for summary judgment on that ground within 60 days following service of the Answer, that affirmative defense is waived. CPLR §3211(¢). ‘The Court notes further that the purported guarantee by CABAN of ALL WAYS" corporate debt is not reflected in a writing subscribed by the party to be charged, and thus, on its face, violates the Statute of Frauds. General Obligations Law §5-701. Insofar as CABAN has failed to raise this issue, either in a pre-Answer motion to dismiss or as an affirmative defense in the Answer, the defense is waived. Bryant v. Broadeast Music, Inc. 27 AD3d 683; 23/23 Communications Corp. v. General Motors Corp., 257 AD2d 367; Con-Solid Contracting, Inc. v. Litwak Development Corp., 236 AD2d 437. Tuming to the merits of plaintiff's prima facie case against CABAN, plaintiff has submitted the Albright Affidavit as testamentary evidence that defendants applied for a business credit card in September 2004, accepted and used the credit card through June 2008 pursuant to a Cardholder Agreement (which includes a personal guarantee) [Motion Exhibit D], and were issued monthly billing statements addressed to both defendants, which were retained without objection. The documentary evidence substantiating these assertions, however, is not unassailable. The purported application is a print-out of what appears to be a 5-page 2computer record containing business and personal information pertaining to the applicant (the “Computer Record”) [Motion Exhibit C]. Page 4, entitled “Misc. Data,” suggests that the application was generated through the internet. There is no authentication, however, of the Computer Record itself or the source of the information contained therein. There is no writing that contains a signature by CABAN, either in his individual capacity or on behalf of ALL WAYS. Although this fact cannot be used to assert a Statute of Frauds defense, which has been waived, it does bear upon the quality and quantum of evidence offered to establish a prima facie case. Further, the proffered ‘Advanta Business Card Agreement (the “Agreement”) [Motion Exhibit D] is a general form of agreement — undated, unsigned, and containing no information that links it to the particular account in question. There is no evidence, in the Albright Affidavit or otherwise, that defendants were sent a copy of this agreement. Copies of the monthly statements submitted by plaintiff [Motion Exhibit F] are incomplete, insofar as several of the interim months are missing. They are, however, on their face, evidence of an active credit card account. ‘The statements were addressed to both CABAN and ALL WAYS, and were issued from October 2004 through and including June 2008. They reflect use of the card and payments on the account (both regular and intermittent) from October 2004 through January 2008. Further, plaintiff attaches a copy of a check payable to plaintiff in the amount of $7,000.00, signed by Hamawati Caban and dated June 10, 2006 [Motion Exhibit D]. The business address (as set forth in the Computer Record and the statements issued for that time period) was imprinted on the check, and the credit card account number was handwritten below the address. Also imprinted on the check was the name of Hamawati Caban. The statement for the billing cycle ending June 26, 2006 reflects a payment in the amount of $7,000, posted on June 15, 2006, which apparently corresponds to the receipt of the check. The Court finds that this check, clearly referable both to the contract in question and to the defendants, is the link that ties the remaining evidence together and confirms its probative value. It substantiates defendants’ acceptance of the credit card and use of the account. It also substantiates CABAN’s acceptance of his personal responsibility for the debt, insofar as the check was drawn on what appears to be a personal account of a family member. On the totality of the evidence, including the Albright Affidavit and supporting documentation, the Court finds that defendant has established sufficiently, although imperfectly, prima facie entitlement to judgment as a matter of law on its breach of contract and account stated causes of action against CABAN. See Citibank v. Roberts, 304 AD2d 901. Insofar as CABAN has filed no opposition, he is deemed to have admitted the facts as asserted by plaintiff. Kuehn & Nagel, Inc. v. Baiden, 36 NY2d 539; Arteaga v. 231/249 W 39 Street Corp., 45 A.D.3d 320, 321. Accordingly, although CABAN has generally denied the allegations of the Complaint in his Answer, he 3