Bank of Am., N.A. v A thru Z Motor Veh. Servs., Inc.

[*1] Bank of Am., N.A. v A thru Z Motor Veh. Servs., Inc. 2012 NY Slip Op 52376(U) Decided on December 31, 2012 Supreme Court, Kings County Schmidt, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2012
Supreme Court, Kings County

Bank of America, N.A. f/k/a, FLEET NATIONAL BANK, Plaintiff,

against

A thru Z Motor Vehicle Services, Inc. d/b/a A THRU Z PRIVATE BUREAU SERVICE, and CHAIM PERLSTEIN, Defendants.



500105/09



Plaintiff, Chaim Perlstein, is pro se, 1260 58th Street, Brooklyn, New York 11219

Defendant Attorney: Lauren A. Isaacof, Esq. , Buchanan Ingersoll & Rooney, PC, 1290 Avenue of the Americas, 30th Floor, New York, New York 10104

David I. Schmidt, J.

By notice of motion filed October 16, 2012 under motion sequence three, defendant Chaim Perlstein (hereinafter "Perlstein") has moved, pro se, for an order granting re-argument of his prior motion to vacate a default judgment entered against him (hereinafter "the subject default").

Bank of America, N.A.(hereinafter "BofA") opposes the motion.

BACKGROUND

On May 5, 2009, BofA commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. The complaint alleges that BofA extended two business loans to A Thru Z Motor Vehicle Services (hereinafter "ATZ") for

the amounts of $80,000.00 and $4,000.00 respectively. Perlstein, as security for the lines of credit, guaranteed the obligations of ATZ in both instances. ATZ, however, defaulted on its obligations for each loan and as a result, Perlstein was required to pay all the amounts due. Perlstein did not make any payments and defaulted on his obligations. BofA sought that a judgment be entered against Perlstein and ATZ in the amount of $107,012.86 plus interest.

Based on the defendants' failure to appear and answer the verified complaint, a default judgment was entered against them on August 11, 2009.

Perlstein made two prior motions to vacate the subject default prior to the instant motion. By order dated October 15, 2010, this Court denied Perlstein's first motion. By order dated July [*2]18, 2012, this Court denied Perlstein's second motion.

MOTION PAPERS

Perlstein's motion papers consist of his affidavit sworn to on September 20, 2012

and two annexed exhibits labeled A and B. Exhibit A is a copy of this Court's order dated July 18, 2012 which denied Perlstein's motion to vacate the subject default. Exhibit B is described as Perlstein's complete copy of his prior order to show cause to vacate the subject default.

The first document of Exhibit B is Perlstein's affidavit sworn to on April 2, 2012 which references seven exhibits labeled A through G. Exhibit A is the default judgment entered against him. Exhibit B is described as Perlstein's prior order to show cause to vacate the subject default signed by Justice Velasquez on May 26, 2010. Also included is plaintiff's opposition papers to that order to show cause dated June 7, 2010. Exhibit C is a copy of this Court's order dated October 15, 2012 which denied Perlstein's motion to vacate the subject default. Exhibit D is the affidavit of service of the summons and complaint upon Perlstein. Exhibit E is described as a copy of Perlstein's utility bill, however, no such exhibit is annexed. Exhibit F is an affidavit from Perlstein's wife. Exhibit G is an affidavit of a tenant who resided in the floor below Perlstein and his family.

BofA has opposed the instant motion with an affirmation of its counsel and three annexed exhibits labeled A through C. Exhibit A is a copy of BofA's notice of entry on August 9, 2012 of this Court's order dated July 18, 2012, which denied Perlstein's prior motion to vacate the subject default. Exhibit B is a copy of BofA's opposition papers submitted April 24, 2012 in opposition to Perlstein's second order to show cause to vacate the subject default. Exhibit C contains the affidavits of service and mailings on the defendants.

LAW AND APPLICATION

After oral argument on the instant motion, Perlstein submitted a cover letter dated November 21, 2012 which referred to an annexed document labeled the "Further Affidavit of Esther Perlstein." Perlstein requested that the affidavit be considered in the decision on the instant motion. BofA's counsel submitted a letter dated November 28, 2012 stating its objection to Perlstein's letter of November 21, 2012, as an improper sur-reply.

Perlstein's letter dated November 21, 2012 and the accompanying "Further Affidavit of Esther Perlstein" are disregarded because they were submitted after oral argument without BofA's consent and without leave of the Court (see CPLR 2214).

Perlstein's First Motion to Vacate the Default

On August 11, 2009, BofA entered a default judgment in the Kings County Clerk's office against ATZ and Perlstein for failing to appear or answer BofA's verified complaint. Jeffrey Conocchioli, BofA's licensed process server, swore that on June 3, 2009, he personally delivered the summons and verified complaint to Jane Perlstein, a co-occupant of Perlstein's residence. He also swore that on June 4, 2009, he mailed copies of the papers to Perlstein at the same address. The affidavit of service demonstrates that Perlstein was served with the summons and verified complaint at his residence in accordance with CPLR 308 (2).

The first order to show cause that Perlstein submitted to vacate the subject default contained his affidavit in support dated May 10, 2010. In his affidavit, Perlstein did not dispute any allegations of fact contained in Conocchioli's affidavit of service. Perlstein [*3]merely stated that he did not have a specific recollection of receiving the summons and verified complaint. He neither admitted nor denied receipt of the summons and verified complaint. Within the same affidavit, Perlstein did admit, however, that he personally guaranteed a line of credit that BofA extended to ATZ. He also admitted that ATZ used the line of credit and owed money to BofA. Perlstein stated that the amount due was somewhat less than BofA claimed.

Perlstein did not state which provision or provisions of the CPLR he was using to vacate the subject default. However, the only provisions arguably applicable are CPLR 317 or subsection (1) or (4) of CPLR 5015(a). The Court will discuss each provision separately.

The Court must first determine whether it has personal jurisdiction over a defendant before considering whether a defendant's default may be excused (Mayers v. Cadman Towers, Inc., 89 AD2d 844 [2nd Dept 1982]). CPLR 5015(a)(4) pertains to a motion to vacate a judgment on the grounds of lack of personal jurisdiction. A process server's affidavit, providing factual information showing that service was made in accordance with CPLR 308, constitutes prima facie evidence of proper service (Bank, Natl. Assn. v. Arias, 85 AD3d 1014 [2d Dept.2011] citing Scarano v. Scarano, 63 AD3d 716 [2d Dept.2009]). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits' " (Bank, Natl. Assn. v. Arias, 85 AD3d 1014 [2d Dept.2011]).

Perlstein's affidavit did not swear to specific facts to rebut the statements in Mr. Conocchioli's affidavit of service. Therefore, the presumption of proper service was not rebutted, the Court obtained personal jurisdiction over Perlstein, and relief pursuant to CPLR 5015(a)(4) would be properly denied.

Assuming Perlstein was seeking to vacate the subject default pursuant to CPLR 317, a defendant who has not been served pursuant to CPLR 308(1) does not have to establish a reasonable excuse for his or her default, but must show that he or she did not receive notice of the action in time to defend it, and must further show that he or she has a potentially meritorious defense." (Deutsche Bank Natl. Trust Co. v DaCosta, 97 AD3d 630 [2nd Dept 2012] citing Wassertheil v Elburg, LLC, 94 AD3d 753, 753 [2nd Dept 2012]).

Once again, Perlstein's affidavit is ambiguous about whether he received the summons and verified complaint. He consequently cannot and does not show that he did not receive the notice of action in time to defend it. Also, the mere denial of the receipt of the summons and complaint is insufficient to rebut the presumption of service established by a process server's affidavit (Id.)

Furthermore, Perlstein's affidavit does not provide a meritorious defense to vacate [*4]the subject default. Perlstein states that he owes somewhat less than BofA claims, but does not explain how he arrived at that conclusion. He states only that he does not remember how much ATZ borrowed. His claim that he owes less is therefore unsubstantiated and lacks merit. Relief pursuant to CPLR 317 would be properly denied.

A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense (Orange County Dept. of Social Services ex rel. Misty F.-R. v. Germel Y., - N.Y.S.2d , 2012 WL 6604524 [2nd Dept 2012]). Perlstein's lack of memory about whether he received the summons and verified complaint is not a reasonable excuse for not appearing or answering the complaint (see Indymac Federal Bank FSB v. Quattrochi, 99 AD3d 763 [2nd Dept 2012]). Furthermore, for reasons previously indicated, he also did not demonstrate that he has a meritorious defense.

This Court issued a decision and order dated October 15, 2010, denying Perlstein's motion to vacate the subject default based on the foregoing reasons.

Perlstein's First Motion for Rearguement

By order to show cause returnable April 26, 2012, Perlstein sought to reargue the Court's decision and order dated October 15, 2010.

CPLR 2221 pertains to a motion affecting a prior order and provides as follows:

to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that

d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.

(e) A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion.

Perlstein's motion for rearguement did not state the fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion. Furthermore, it improperly included facts not offered on the prior motion. For instance, Perlstein definitively stated in the motion for rearguement that he was never served with the summons and complaint. However, he stated in the prior motion that he did not recall whether he was served. He also annexed to the motion for rearguement the affidavits of his wife, Esther Perlstein and a tenant, Sury Sternberger, who each swore that they were never served with legal papers. He provided new facts not offered in the prior motion contrary to the requirements of CPLR 2221(d)(2). [*5]

Assuming that Perlstein actually was making a motion for renewal, he did not offer any reasonable justification for the failure to present the new facts on the prior motion as required pursuant to CPLR 2221(e)(3) (Forssell v. Lerner, - N.Y.S.2d , 2012 WL 6176761 [2nd Dept 2012]).

Therefore, by decision and order dated July 18, 2012, this Court properly denied Perlstein's first motion for rearguement which was his second attempt to vacate the subject default.

Perlstein's Second Motion for Rearguement

The instant motion is Perlstein's second motion for rearguement and third attempt to vacate the subject default. The instant motion contains Perlstein's affidavit signed on September 20, 2012, a copy of this Court's order dated July 18, 2012, and what is described as a complete copy of Perlstein's prior order to show cause to vacate the subject default.

Perlstein identified the instant motion as one for rearguement. He contends that this Court's decision of July 18, 2012 is incorrect because he proved through his affidavit and the affidavit of his wife and tenant that he was not properly served with the summons and verified complaint. He concludes that the affidavits effectively demonstrate that the Court never obtained jurisdiction over him.

Although this Court's decision of July 18, 2012 did not state the reasons for the denial of Perlstein's first motion for rearguement, the reasons are now set forth within this decision and order. Perlstein's claim that he was never served with the summons and verified complaint was a new fact not made in his first motion to vacate the subject default. Perlstein originally claimed that he had no memory of whether he was served. Also, the three aforementioned affidavits offered new facts that were not presented on Perlstein's first motion to vacate the subject default. As this Court has previously indicated, the submission of new facts violates the requirements of CPLR 2221(d)(2). A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" ( V. Veeraswamy Realty v. Yenom Corp., 71 AD3d 874 [2nd Dept 2010] citing McGill v. Goldman, 261 AD2d 593 [2nd Dept 1999]).Assuming, the first motion for rearguement were actually one for renewal, the new facts offered inclusive of the three affidavits, were submitted without reasonable justification for the failure to present those facts on the first motion. They were therefore submitted contrary to the requirements of CPLR 2221(e)(3). For the foregoing reasons, the instant motion must also be denied. To the extent that the discussion of the instant motion may appear repetitious, this is due to Perlstein's repeated noncompliance with the requirements of CPLR 2221.

BofA's Request for Affirmative Relief

It is noted that BofA's counsel submitted an affirmation in opposition to the instant motion which requested two specific items of affirmative relief. First, BofA seeks an [*6]order directing Perlstein to pay its costs and attorneys' fees for having to respond to the instant motion, Perlstein's third attempt to vacate the subject default. Second, BofA seeks an order precluding Perlstein from making any further applications to this Court in this action.

A Court may not grant affirmative relief that is requested solely in opposition papers to a motion. It may only grant affirmative relief that is requested within a motion or cross-motion (see CPLR 2214 and 2215; see also PHH Mortg. Corp. v. Colliton, 36 Misc 3d 1220(A), Slip Copy, 2012 WL 3086200 [N.Y.Sup. 2012]). BofA has not moved for affirmative relief by a notice of motion or cross-motion. Therefore, BofA's request for attorney fees, cost and preclusion are not properly brought before the Court and are disregarded without prejudice.

The foregoing constitutes the decision and order of this Court.

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