Discover Bank v Slack

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Discover Bank v Slack 2012 NY Slip Op 30434(U) February 8, 2012 Supreme Court, Nassau County Docket Number: 16191/10 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. --------- --- ---- ------------ --- ----- ------- --- ------- -- -------- -------- )( --- --- ------- --- ------ ----- - ---- --- - - -- - -- -- ----------------- -- )( [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: PART DISCOVER BANK, Plaintiff DECISION AND ORDER - against - Index No. : 16191/10 Original Retur Date: 10/28/11 Motion Seq. No. : 001 SUSAN JOY SLACK, Defendant. PRESENT: HON. JOEL K. ASARCH Justice of the Supreme Court. The following named papers numbered 1 to 7 were submitted on this Order to Show Cause on November 14 2011: Papers numbered: Order to Show Cause , Affirmations (2) and Affidavit in Support Memorandum of Law in Support Affirmation in Opposition Reply Affirmation The motion by the Defendant , SUSAN JOY SLACK , for an Order pursuant to C. P . L.R. 5015 vacating and setting aside a Judgment on Default entered against her on December 1, 2010 , is decided as follows: The Complaint fied in this action alleges that the Defendant , SUSAN JOY SLACK , entered into an agreement with and utilized a credit card issued by the Plaintiff, DISCOVER BANK pursuant to which she agreed to repay Plaintiff for such use. The Complaint fuher alleges that the Defendant failed to make payments due to the Plaintiff under the credit card agreement, leaving a balance of$17 424. 96 due as of April 30 , 2010. The Plaintiff commenced this action against the Defendant in or about August 2010 for breach of the agreement and for an account stated , and sought [* 2] monetar damages in the , plus interest , costs , disbursements and reasonable sum of $17,424. attorneys ' fees. The Affidavit of Service of Osmond Tinglin alleges that on Thursday, September 2 2010 at approximately 4:25 p. , Tinglin attempted to serve the Defendant at her residence on West Penn Street in Long Beach , New York. He retued on Saturday, September 4 2010 at 10: 10 a. without finding the Defendant home. Finally, on Wednesday, September 8 , 2010 at 7:15 p. , again , the process server alleges that he affixed a copy of the Sumons and Complaint to the door at the Defendant' s place of abode , and on September 13 , 2010 , served an additional copy of the Sumons and Complaint upon the Defendant at her residence by first class mail. Pursuant to C. L.R. 3215(g)(3)(i), additional notice was given to the Defendant by the Plaintiff on September 17 2010 by first class mail to her residence in Long Beach , New York. When the Defendant did not appear in this action , December 1 a Judgment on Default was entered against her and in favor of the Plaintiff 2010 in the sum of$18 643.40. In seeking to vacate the Judgment on Default , the Defendant argues that she became aware of this action when she received an Income Execution from the Sheriff. As expressed in her supporting Affdavit , the Defendant bases her application to vacate the Judgment on two grounds: (1) that she does not " recall" having a loan with the plaintiffor executing any written agreement with them; and (2) that as she was not personally served , this Cour does not have jurisdiction over her and that the Judgment should be vacated. A motion to vacate a default is one addressed to the sound discretion of the Cour v. City of New York 13 AD3d 566 (2 1991 D. In order to Dept. 2004); (Abrams Giordano v. Patel 177 AD2d 468 (2 Dept. vacate a judgment or order pursuantto c.p . L.R. 50 15( a) (1 ), the Defendant must demonstrate an excusable default and a meritorious defense (Kurtz v. Mitchell 27 AD3d 697 (2 [* 3] Dept. 2005D. In this case , the Defendant has Harkless v. Reid 23 AD3d 622 (2 Dept. 2006); demonstrated neither. The Plaintiff bears the burden of establishing that the Defendant has been served in such a (Kanner v. Gerber 197 AD2d 673 way so as to confer the Court withjurisdiction over the Defendant Frankel v. Schillng, Dept. 1993); 149 AD2d 657 (2 Dept. 1989)). An Affidavit of Service which sets forth the papers served , the person served , the date , time , and place at which service was made , and that the person who made service was authorized to serve process , constitutes (Remington Investments, proof of service Inc. v. Seiden 240 AD2d 647 (2 Maldonado v. County of Suffolk 229 AD2d 376 (2 v. Schillng, Dept. 1997); Dept. 1996)). The par contesting service must place before the Cour facts presumption of service primafacie (Kopman v. Blue Ridge Ins. Co. 296 AD2d 479 (2 sufficient to rebut the Dept. 2002); Frankel 149 AD2d 657 (2 Dept. 1989)). The mere denial of receipt of a copy of the Sumons (Electric Insurance Company and Complaint is insuffcient to rebut the presumption of mailing Grajower 256 AD2d 833 (3 Dept. 1998); Spangenberg v. Chaloupka 229 AD2d 482 (2 Dept. 1996)). The Defendant argues that she never received any copy of the Summons and Complaint. She surises that the mailed copy of the process was never delivered since it was mailed to the wrong zip code according to the affidavit of service (11516 instead of 11561). The Defendant does not dispute that at the time , she resided at the Long Beach address. In determining a jurisdictional question under CPLR 308(4), a decidedly disfavored method of service to this Cour based on the requirement of " due diligence , the Cour must consider the following: Service of process must be made in strict compliance with statutory methods for ," ' " [* 4] (Macchia v Russo effecting personal service upon a natural person pursuant to CPLR 308 67 NY2d 592 594 (1986);see Dorfman v Leidner 76 NY2d 956 958 (1990)). CPLR 308 requires that service be attempted by personal delivery of the summons to the person to be served (CPLR 308 (1)), or by delivery to a person of suitable age and discretion at the actual place of business , dwellng place or usual place of abode (CPLR 308 (2)). Service pursuant to CPLR 308 (4), commonly known as nail and mail service , may be used only where service under CPLR 308 (1) or (2) canot be made with due diligence (see Feinstein v Bergner, 48 NY2d 234 239 (1979); Connell v Post, 27 AD3d 630 (2006); Simonovskaya v Olivo , 304 AD2d 553 (2003); Rossetti v DeLaGarza 117 AD2d 793 (1986)). Nail and mail service is effected "by affixing the summons to the door of either the actual place of business dwelling place or usual place of abode within the state of the person to be served and by either mailng the sumons to such person at his or her last known residence or by mailing the summons by first class mail to the person. . . at his or her actual place of business (CPLR 308 (4)). Although " due diligence " is not defined in the statutory framework , the term has been interpreted and applied on a case- by-case basis (see Barnes v City of New York, 51 NY2d 906 907 (1980); Singh v Gold Coin Laundry Equip., 234 AD2d 358 (1996)). "' (T)he due dilgence requirement refers to the quality of the efforts made to effect personal service , and certainly not to their quantity or frequency (Barnes v City of New York, 70 AD2d 580 580 (1979), affd 51 NY2d 906 (1980), supra (quoting from nisi prius). A mere showing of several attempts at service at either a defendant' s residence or place of business may not satisfy the " due diligence " requirement before resort to nail and mail service (see County of Nassau v Long, County of Nassau v Yohannan 34 AD3d 620 , 620- 621 Annis v Long, 298 AD2d 340 , 341 (2002)). 35 AD3d 787 (2006); (2006); Earle v Valente, 302 AD2d 353 (2003); However due diligence" may be satisfied with a few visits on different occasions and at different times to the defendant' s residence or place of business when the defendant could reasonably be expected to be found at such location at those times 18 AD3d 447 (2005); Brunson v Hil 191 AD2d 334 , 335 (1993); (see Lemberger v Khan, Mike Lembo Sons v 99 AD2d 872 (1984)). For the purose of satisfying the " due diligence requirement of CPLR 308 (4), it must be shown that the process server made genuine Robinson, inquiries about the defendant' s whereabouts and place of employment (see Sanders vElie, 29 AD3d 773 , 774 (2006); Kurlander v A Big Stam, Corp. 267 AD2d 209 , 210 (1999); Busler v Corbett 259 AD2d 13 , 15 (1999)), "' given the reduced likelihood that a summons served pursuant to (nail and mail service) wil be received' (County of Nassau v Letosky, 34 AD3d 414 415 (2006), quoting Gurevitch v Goodman 269 AD2d 355 , 355 (2000)). Estate of Waterman v. Jones, 46 A. 3d 63, 65 (2 Dept. 2007). Here , the process server made three attempts to serve the Defendant at her actual place of abode before resorting to "nail and mail" service. One was made during normal working hours , one was made after normal working hours and one was made on a Saturday. The attempts to serve the Defendant were made at times reasonably calculated to find the Defendant at her residence. The [* 5] argument raised by the Defendant that because of a purortedly wrong zip code she did not receive the mailng of process does not rebut the presumption of affixing regularity nor the receipt of the additional CPLR 3215(g) notice mailed to her at the proper zip code. Defendant does not contest that the West Penn Street , Long Beach , New York address was her " dwellng place or usual place of abode " (see Income Execution , Exhibit " C" to moving papers). Furher , she does not specifically deny receipt of a copy of the Summons and Complaint that was mailed to her at the Long Beach address in September 2010 (Exhibit " A" to moving papers). Conclusory denials of service are insufficient to raise questions of fact rebutting the in the Affidavit of Service (96 prima facie Pierrepont First National Bank v. Mandracchia, , LLC v. Mauro, 248 AD2d 375 (2 evidence of proper service contained 304 AD2d 631 (2 Dept. 2003); Simmons Dept. 1998)). While it may be apparent to Defendant's counsel that " Plaintiff didn t get it right - service wasn t properly accomplished" (Reply Affdavit , paragraph " ), the Defendant' s response is insuffcient to rebut the presumption of valid service. Since the Defendant has failed to place before this Cour facts controverting service , she has not established an excusable default. The Defendant has also failed to establish a meritorious defense. She asserts that she does "not believe " she executed a written agreement with the Plaintiff and does " not recall having a loan through use of a credit card" with Plaintiff. There is no mention of any statements which she received for the credit card ending in 0471. As the Defendant has failed to set forth any legal basis upon which the Judgment on Default can be vacated, the motion must be denied. Accordingly, after due deliberation , it is ORDERED , that the motion of the Defendant for an Order pursuant to C. L.R. 5015 vacating and setting aside the Judgment on Default entered against her on December 1 , 2010 is [* 6] denied in its entirety; and it is furher ORDERED , that the stay contained in the Order to Show Cause granted on October 11 is hereby vacated. The foregoing constitutes the Decision and Order of this Cour. Dated: Mineola, New York Februar 8 , 2012 ENTER: Copies mailed to: Forster & Garbus , LLP Attorneys for Plaintiff Richard A. Klass , Esq. Attorney for Defendant ENTERED FEB 1 0 2012 NASSAU COUNTY COUNTY CLERK' S OfFICE 2011

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