New Century Financial Services Inc. v. Baines, 8260/03
July 14, 2006
For Plaintiff: Law Offices of Cohen & Slamowitz
For Defendant: Nick Gjelaj
A default judgment had been entered against defendants in the sum of $4,815.76 for allegedly unpaid credit card debt. Plaintiff recently has attempted to execute on this judgment by way of income execution and defendants are now moving for an Order pursuant to CPLR 5015, subdivision (a), paragraphs 1 and 4 vacating the default judgments. Defendants contend that personal jurisdiction was never conferred because they had resided at 6 Ridge Road in Dobbs Ferry at the purported time of service and the filed affidavits of service state that service upon each defendant had been effected pursuant to the nail and mail method of service set forth in CPLR 308, subdivision 4, at “60 Ridge Road. (Emphasis added),” with follow up mailings at the same incorrect street address. In support of their motion, defendants offer their terse affidavit wherein they aver that at the time of purported service they had resided at 6 Ridge Road and that they never had resided at 60 Ridge Road.
Plaintiff opposes the motion, arguing that because the process server had identified in his affidavits a neighbor of defendants’ with whom he had spoken at the time of service, which neighbor had confirmed that defendants resided at the address where the summons and complaint had been affixed, that it is apparent that the affidavits of service merely contain a typographical error with respect to the street number. In this regard, plaintiff points out that defendants do not expressly deny in their supporting affidavit that they had not received the summons and complaint, absent which plaintiff contends jurisdiction has been properly obtained and no reasonable excuse for defendants’ default exists. Plaintiff also argues that this motion “is grossly overdue” given that the judgment had been entered in 2003. Finally, plaintiff argues that the motion to vacate must be denied because defendants fail to state a meritorious defense to the claim.
Initially, this Court finds that plaintiff has not demonstrated that the instant motion pursuant to CPLR 5015, subdivision (a), paragraph 1, is untimely since such a motion must be made within one year after service of a copy of the judgment,” and there is no proof before this Court as to when, if ever, plaintiff had served defendants with a copy of the entered judgment.
Nevertheless, the Court denies defendants’ motion predicated upon CPLR 5015, subdivision (a), paragraph 1, because it is well settled that, in order to be entitled to an Order pursuant to CPLR 5015 vacating a default judgment, a defendant needs to demonstrate both excusable default and a meritorious defense. See Wrighton v. Wrighton, 23 A.D.2d 669 (2nd Dept. 2005) Harkless v. Reid, 23 A.D.3d 622 (2nd Dept. 2005); Grinberg v. Fahnestock & Co., Inc., 22 A.D.3d 801 (2nd Dept. 2005). Here, defendants plainly have not offered any meritorious defense to the underlying claim and thus for this reason alone defendants would not be entitled to relief pursuant to CPLR 5015, subdivision (a), paragraph 1. See Lopez v. Trucking & Stratford, Inc., 299 A.D.2d 187 (1st Dept. 2002); Peacock v. Kalikow, 239 A.D.2d 188 (1st Dept. 1997).
Parenthetically, while defendants have not specifically sought relief under CPLR 317, the Court notes that it also has considered this statute with respect to the instant motion and must similarly conclude that defendants are not entitled to relief from the judgment under this statute because there is no proof that they did not receive timely notice of the action or that they have a meritorious defense. See Persaud v. Gallante Properties, Inc., 11 A.D.3d 442 (2nd Dept. 2004); Udell v. Alcamo Supply & Cointracting Corp., 275 A.D.2d 453 (2nd Dept. 2000).
With respect to defendants’ argument predicated upon a lack of jurisdiction pursuant CPLR 5015, subdivision (a), paragraph 4, this Court importantly observes that there is no dispute that, at the time this action had been commenced, defendants in fact had resided at 6 Ridge Road, Dobbs Ferry, and indeed the summons filed in the Clerk’s office itself clearly states that defendants resided at this afore stated address. The only issue presented is whether jurisdiction has been properly conferred where the stated addresses of service were not those of defendants.
Notably, plaintiff does not offer herein an affidavit from its process server explaining that the stated “60” street number where he affixed the summons and complaint and had mailed same were merely typographical errors; nor has plaintiff offered any excuse as to why is process server’s affidavit has not been submitted.
It further is notable and troubling that the copy of the summons contained in plaintiff’s file, and which is submitted in opposition to the instant motion and presumably is a copy of the summons which had been served, contains handwritten alterations to the addresses that had been typed on the face of the summons; specifically, whereas defendants’ addresses on the summons are typed as being “6 Ridge Road,” there are handwritten insertions of “0” changing the “6” to “60”. This alteration is not explained by plaintiff, and there simply is no evidence as to when or by whom this alteration was effected.
Accordingly, while an affidavit of service ordinarily constitutes prima facie evidence of proper service unless there is a sworn denial of receipt, the latter of which is not presented at bar, nevertheless, on the record at bar, this Court cannot find that the affidavit of service constitutes proof of valid service wherein it sets forth an otherwise unexplained wrong street number and the apparently served summonses contain unexplained street number alterations.
Defendants’ motion is thus granted to the extent only that the parties shall appear at 9:30 a.m. on August 14, 2006, in the Central Calendar Part for the setting of a Traverse hearing date. This date may not be adjourned without the Court’s consent. Any party’s failure to appear may result in the imposition of costs and/or sanctions.