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Affidavit Defective Listing Similar but Not Correct Address Than That of Defendant

MRC Receivables Corp. v. Sanon, CV-135544-09/KI

Decided: August 19, 2009

Judge Noach Dear

KINGS COUNTY
Civil Court
Attorneys for Plaintiff: Law Office of Cohen & Slamowitz, LLP
Attorneys for Defendant: Chris Johnson, Esq.
Judge Dear

DECISION AND ORDER
In this consumer credit action, defendant, Ricardo Sanon, moved on January 27, 2009 by Order to Show Cause to vacate the judgment in this action. Opposition to that application was served on February 6, 2009. Defendant then retained counsel, who then moved by Notice of Motion for an Order to vacate the judgment pursuant to CPLR 317 and 5015, and upon such vacatur, for a further Order dismissing the action for lack of personal jurisdiction pursuant to CPLR 3211(a)(8). Plaintiff served a separate set of opposition papers to that motion. The parties stipulated on June 29, 2009 to consolidate all the papers under the January 27, 2009 Order to Show Cause (see CPLR 2001).

Plaintiff commenced this consumer credit action and served the instant summons and complaint pursuant to CPLR 308(4) on or about October 27, 2006 at “33 Paerdegat Ave N Apt 8, Brooklyn, NY 11236.” Around January 2007, plaintiff entered a default judgment against the defendant.
In Ricardo Sanon’s January 27, 2009 affidavit in support of his Order to Show Cause, he swore that he was never served with the summons and complaint, that his first notice of the action came nearly a year and a half after judgment was entered, and that he did not owe the subject debt.
On June 3, 2009, defendant’s Notice of Motion’s supporting papers clarified that the affidavit of service was defective because it listed a similar, but materially different, address to that of the defendant’s real address of “33 Paerdegat 8 Street, Brooklyn, New York, 11236.” Thus, plaintiff erred by serving the defendant at Paerdegat Avenue N instead of Paerdegat 8 Street. Defendant presented an overwhelming amount of evidence as to his correct address. Further, defendant tendered true and accurate pictures of both street signs, showing that the addresses were different.

In opposition, plaintiff argued that defendant failed to establish a meritorious defense, that the application is barred by the doctrine of laches, that the application is untimely under CPLR 5015(a)(1), and that defendant failed to establish a reasonable excuse. 1

It is well settled law that the affidavit of the process server constitutes prima facie evidence of proper service under CPLR 308 and that a defendant’s bare and unsubstantiated denial of receipt is insufficient to rebut that presumption (Beneficial Homeowner Service Corp. v. Girault, 60 AD3d 984 [2d Dept 2009] [citations omitted]). However, when a defendant provides a sworn denial of service the “the affidavit of service [becomes] nonconclusive and shifts the burden of proof to plaintiff to substantiate the allegation of personal service therein” (Anton v. Amato, 101 AD2d 819, 820 [2d Dept 1984] [citations omitted]; see also Chaudry Const. Corp. v. James G. Kalpakis & Associates, 60 AD3d 544 [1st Dept 2009] [holding, in relevant part, that the plaintiff has the burden of proof to establish proper service]).

In this case, this court takes judicial notice of defendant’s contention that the address on the affidavit of service is materially different from defendant’s actual address and that there are numerous streets (approximately 15) with Paerdegat in their name (see Prince, Richardson on Evidence smark 2-202 [Farrell 11th ed]; see also FRE 201). Accordingly, defendant has properly rebutted the presumption of valid service (see European American Bank & Trust Co. v. Serota, 242 AD2d 363, 364 [2d Dept 1997] [citations omitted]).
Moreover, 33 Paerdegat Ave N Apt 8, Brooklyn, NY 11236 was not defendant’s “actual dwelling place or usual place of abode,” and there is simply no valid line of reasoning or of permissible inferences which could possibly lead a rational finder of fact to the conclusion that defendant was properly served (CPLR smark 308[4]; Feinstein v. Bergner, 48 NY2d 234, 239 [1979]; Group v. Coutrier, 59 AD3d 602, 603 [2d Dept 2009]; Lang v. Newman, 12 NY3d 868 [2009] [citations omitted]). It was “virtually certain” that a copy of plaintiff’s complaint would not arrive at the requisite location under CPLR 308 (cf. United States Bank Nat’l Assn. v. Vanvliet, 24 AD3d 906, 908 [3d Dept 2005] [citations omitted] [emphasis added]).

Furthermore, defendant’s sworn contention that he had no contact with the Paerdegat Avenue North went without contradiction (see e.g. Arteaga v. 231/249 W 39 St. Corp., 45 AD3d 320, 321 [1st Dept 2007] [holding, in relevant part, that failing to controvert a material fact may be deemed an admission]). Thus, plaintiff failed to raise an issue requiring a traverse hearing.

Furthermore, whether “the defendant had notice of the instant lawsuit with an opportunity to defend himself [is] an insufficient basis upon which to deny his motion to vacate the default judgment” (Merchants Ins. Group v. Coutrier, 59 AD3d at 603 [citations omitted]). “Since the summons was affixed to the door of [a place that was something other] than [defendant’s] usual place of abode, the purported ‘nail and mail’ service was ineffective and personal jurisdiction was not acquired over the defendant” (Commissioners of State Ins. Fund v. Khondoker, 55 AD3d 525, 526 [2d Dept 2008] [citations omitted]).

It is “axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Hossain v. Fab Cab Corp., 57 AD3d 484, 485 [2d Dept 2008] [citation and quotations omitted]). Accordingly, this court grants defendant’s application to vacate the default judgment, and upon such vacatur, dismisses the action. In opposition plaintiff has failed to raise a traversable issue (see Patrick v. 118 E. 60th Owners Inc., 2008 NY Slip Op 5169595(U) [Sup Ct, Bronx County] [citations omitted]).

Based on the above, it is hereby
ORDERED that defendant’s motion to vacate the judgment for the within action is GRANTED, and any judgment and all post judgment enforcement, including any income executions and restraints shall be vacated. Any monies or other assets that may have been collected in the enforcement of the judgment shall be returned to the defendant forthwith; and it is further

ORDERED that defendant’s motion to dismiss pursuant to CPLR 3211(a)(8) is GRANTED and the complaint against the defendant is hereby

DISMISSED for want of personal jurisdiction.