Cach, LLC v Anderson

[*1] Cach, LLC v Anderson 2015 NY Slip Op 51132(U) Decided on July 27, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ.
2014-99 K C

Cach, LLC, Appellant,

against

Jasmine E. Anderson, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered January 7, 2014. The order granted defendant's motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment is denied.

Plaintiff commenced this action in May 2008 to recover the principal sum of $1,106.62. The affidavit of service states that defendant was served on June 14, 2008 by serving John Anderson, a person of suitable age and discretion, at defendant's dwelling place located at 1584 Remsen Avenue, Brooklyn, NY, and by mailing the summons and complaint to the same address. A default judgment was entered against defendant on November 13, 2008. By order to show cause dated December 16, 2013, defendant moved to vacate the default judgment, alleging that she had not been served. In opposition to the motion, plaintiff asserted that the court lacked jurisdiction over the matter because the judgment had been paid and a satisfaction of judgment had been filed. The Civil Court granted defendant's motion to vacate the default judgment.

Contrary to plaintiff's contention, the payment of the judgment by defendant did not divest the Civil Court of jurisdiction to vacate the judgment (see Smithtown Gen. Hosp. v Allstate Ins. Co., 111 AD2d 382 [1985]; but see H.D.I. Diamonds, Inc. v Frederick Modell, 86 AD2d 561 [1982]). Nevertheless, the order granting defendant's motion must be reversed and the motion denied.

A defect in personal jurisdiction may be waived where the defendant satisfies the judgment (see Lomando v Duncan, 257 AD2d 649 [1999]). Here, defendant's voluntary payment and satisfaction of the judgment amounted to an acknowledgment of the validity of the judgment and a waiver of her jurisdictional defense (Lomando, 257 AD2d at 649). Consequently, defendant failed to establish a basis to vacate the default judgment upon the ground of lack of personal jurisdiction (CPLR 5015 [a] [4]). To the extent that defendant seeks to vacate the default judgment pursuant to CPLR 5015 (a) (1), she failed to proffer a reasonable excuse for her default. Thus, we need not determine whether defendant had a potentially meritorious defense to the action (see Deutsche Bank Natl. Trust Co., 102 AD3d 724 [2013]; ACT Props., LLC, 102 AD3d 712 [2013]). Moreover, relief from the default judgment is barred under CPLR 317 since more than five years elapsed between the entry of the judgment in November 2008 and the underlying motion in December 2013.

Accordingly, the order is reversed and defendant's motion to vacate the default judgment is denied.

Pesce, P.J., Weston and Solomon, JJ., concur.

Decision Date: July 27, 2015