Talley v Peck

[*1] Talley v Peck 2009 NY Slip Op 51028(U) [23 Misc 3d 141(A)] Decided on May 22, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-620 K C.

Sinina Talley, Respondent,

against

Robert Peck d/b/a Oakbrook Sales Corp. - Kitchen Kuzin, Appellants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered July 30, 2007. The order denied defendants' motion to, inter alia, vacate a default judgment.

Order reversed without costs and defendants' motion to, inter alia, vacate the default judgment is remitted to the Civil Court for a determination de novo following a hearing.

Substantial justice has not been done between the parties according to the rules and principles of substantive law (see CCA 1807). Following the entry of a default judgment in this small claims action and a marshal's seizure of monies from defendant Oakbrook Sales Corp.'s bank account, defense counsel, representing all of the defendants, moved to vacate the judgment on the grounds that the court lacked personal jurisdiction and that defendants lacked knowledge of the judgment and had meritorious defenses. In support of the motion, an affidavit sworn to before an Arizona notary was submitted by defendant Robert Peck, asserting that he was president of defendant Oakbrook Sales Corp., a New York corporation, and that "Kitchen Kuzin" was the internet name used by Oakbrook Sales Corp.

At the outset, it is noted that defendant Peck's affidavit, which was sworn to before an Arizona notary, was worthy of consideration even though it did not comply with CPLR 2309 (c) since plaintiff failed to raise any specific objection in the Civil Court based on said ground (Francis v Allain, 21 Misc 3d 142[A], 2008 NY Slip Op 52386[U] [App Term, 2d & 11th Jud [*2]Dists 2008]). Inasmuch as said affidavit set forth sufficient allegations to raise the issue of whether the court had personal jurisdiction over defendants, we are of the view that there should be a hearing to determine whether notice of the claim was sent to defendants' residence, office or regular place of employment as prescribed by CCA 1803 (a) (see Cipriano v Hank, 197 AD2d 295, 298 [1994]; Mayers v Cadman Towers, 89 AD2d 844, 845 [1982]).

Accordingly, the order is reversed and defendants' motion to, inter alia, vacate the default judgment is remitted to the Civil Court for a determination de novo following a hearing.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 22, 2009