CACV of Colo., LLC v McKesey

[*1] CACV of Colo., LLC v McKesey 2009 NY Slip Op 51673(U) [24 Misc 3d 1230(A)] Decided on July 28, 2009 Mount Vernon City Ct Seiden, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 4, 2009; it will not be published in the printed Official Reports.

Decided on July 28, 2009
Mount Vernon City Ct

CACV of Colorado, LLC, Plaintiff,

against

Denzil McKesey, Defendant.



4681-06



Ira R. Sitzer, Esq.

Daniels & Norelli, P.C.

Attorneys for Plaintiff

900 Merchants Concourse, Suite 400

Westbury, New York 11590

Denzil McKesey

Defendant Pro Se

Adam Seiden, J.

The plaintiff moves for entry of a default judgment based upon the defendant's failure to appear. The defendant has submitted no papers in opposition to the motion.

Entry of a default judgment requires, in addition to proper service of the summons and complaint, an affidavit executed by a party with personal knowledge of the merit of plaintiff's claim, or at least a verified complaint (CPLR 3215). It is undisputed that this motion for default judgment, dated January 29, 2009, is now submitted well over one year from the date the default occurred.

Since the plaintiff failed to move for leave to enter a default judgment within one year of the defendant's default in answering (CPLR 3215(c)), it is required to demonstrate a reasonable excuse for the delay, and the merits of its cause of action, to avoid dismissal of the complaint as abandoned (Geraghty v Elmhurst Hospital Center, 305 AD2d 634 (2d Dept 2003); Sanders v Falcone Brick Contracting, 133 AD2d 342 (2d Dept 1987)).

Plaintiff's proffered excuse for delay is that the defendant started making voluntary monthly payments to his office to settle the matter after being served with the summons and complaint. However, plaintiff failed to set the payment arrangement in writing by having the defendant execute a stipulation of settlement. Attached to the papers as Exhibit D, plaintiff has submitted a computer printout of a payment history as proof of the defendant's voluntary payments. After defendant defaulted in making payments, plaintiff filed the instant motion.

On this motion, plaintiff has submitted proof of service of the summons and verified complaint upon the defendant, along with an affidavit of Jeffrey Gustin, "the authorized agent" of plaintiff.

Pursuant to the affidavit of service, defendant was served with the summons and verified complaint via conspicuous place service on November 20, 2006 at 12:45 pm at 346 South Sixth Avenue after two unsuccessful attempts at personal service on October 25, 2006 at 1:25 pm and November 9, 2006 at 7:00 pm. The affidavit further states that the required additional mailing was made on November 20, 2006 as well.

The "nail and mail" method of service pursuant to CPLR § 308(4) may be used only [*2]where personal service under CPLR §§ 308 (1) and (2) cannot be made with "due diligence" (Credit Acceptance Corp. v Greve, 15 Misc 3d 1115A (Sup Ct Suffolk Co. 2007) (citing Lemberger v Khan, 18 AD3d 447, 794 (2d Dept 2005)). After reviewing the affidavit of service, the Court finds that the attempts at personal service made on the weekdays during normal business hours (12:45 pm and 1:25 pm) or at 7:00 pm, a time when it could reasonably have been expected that the defendant was in transit from his job, are insufficient as a matter of law to satisfy the due diligence requirement (Gantman v Cohen, 209 AD2d 377 (2d Dept 1994) (three personal service attempts on weekdays at 10:50 am, 4:30 pm and 6:36 pm did not meet the "due diligence" standard of CPLR 308(4); see also Magalios v Benjamin, 160 AD2d 773 (2d Dept) (three attempts on weekdays at 9:00am, 5:30pm and 6:00pm insufficient to meet due diligence standard). Further, the affidavit of the process server failed to demonstrate that the process server attempted to ascertain the defendant's business address at to effectuate personal service at that location (Gurevitch v Goodman, 269 AD2d 355 (2d Dept 2000) (three attempts at service on weekdays at 7:22 am and 8:34 pm and Saturday at 3:39 pm at home insufficient where no attempt to ascertain or serve at defendant's business address)). Accordingly, plaintiff's motion must be denied and the claim dismissed for lack of personal jurisdiction.

Even if jurisdiction over the defendant had been established, the plaintiff's motion would nevertheless require denial. "In the absence of either a proper affidavit by the party or a complaint verified by the party, not merely by an attorney with no personal knowledge, the entry of judgment by default is erroneous" (Credit Acceptance Corp. v Greve, supra, (citations omitted)).

In support of the motion plaintiff submits a complaint verified by counsel and a an affidavit of plaintiff's "authorized agent" Jeffrey Gustin. Mr Gustin states that plaintiff is the assignee and/or purchaser of the all rights and privileges of the original creditor grantor, Providian Bank. He further states "to the best of our knowledge, in the ordinary course of business, PROVIDIAN BANK, assignor to Plainitiff herein, did, prior to the transfer of the title, rights and privileges of said account, furnish and deliver to the Defendant(s) on 2/27/04, a full, just and true statement of the unpaid balance due from Defendant(s) by use of said account." It is evident to the Court that Mr. Gustin has no personal knowledge of the retail charge agreement account agreement between defendant and Providian Bank (Rushmore Recoveries X, LLC v Skolnick, 15 Misc 3d 1139A (Dist Ct. Nassau Co. 2007)). Similarly, counsel's verification lacks personal knowledge and serves no probative value on this motion. Further, plaintiff has failed to provide the Court with any proof of assignment. Nor has the plaintiff provided any proof of payment made by the defendant towards this claim, including copies of money orders and personal checks; the plaintiff's self-serving computer printout is insufficient.

Plaintiff's motion for a default judgment is denied and the claim is dismissed for lack of personal jurisdiction.

This constitutes the Decision and Order of the Court.

The Court considered the following papers on this motion:

Notice of Motion dated January 29, 2009; Affirmation in Support; Affidavit in Support; Exh. A-D.

Dated:July 28, 2009

Mount Vernon, New York [*3]

_________________________________

Hon. Adam Seiden

Associate City Judge of Mount Vernon

To:

346 South 6th Avenue

Mount Vernon, New York 10550