Avis Rent a Car Sys., LLC v Forbes

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[*1] Avis Rent a Car Sys., LLC v Forbes 2017 NY Slip Op 50061(U) Decided on January 17, 2017 Civil Court Of The City Of New York, Bronx County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 17, 2017
Civil Court of the City of New York, Bronx County

Avis Rent a Car System, LLC d/b/a PV HOLDING CORP., Plaintiff

against

Robert C Forbes a/k/a ROBERT CHRISTIAN, Defendant



16331/2015



CARMAN, CALLAHAN & INGHAM, LLP

Attorneys for Plaintiff

By: JAMI C AMARASINGE, ESQ

930 Grand Concourse - Suite 1-B

Bronx, New York 10451

718.933.3633

ROBERT C. FORBES A/K/A ROBERT CHRISTIAN

Defendant
Sabrina B. Kraus, J.

BACKGROUND

This action was commenced by Plaintiff for damages to a car alleged to have been rented by Defendant. It is asserted that the accident took place in Rockland County, on May 15, 2013, that on said date Nicolette Burke was driving the car and hit a tire in the road causing damage to the vehicle.

Plaintiff filed a summons and endorsed complaint on December 28, 2015. The affidavit of service alleges service by delivery to a John Doe at the Bronx address on January 12, 2016. The affidavit alleges John Doe is a co-occupant, who refused to provide his name, and that the address in the Bronx is defendant's usual place of abode.

Defendant failed to appear and now Plaintiff has moved for entry of a judgment on [*2]default. The motion was returnable on January 17, 2017. Defendant failed to appear on the return date and the court reserved decision on the motion.



DISCUSSION

The motion is denied on default for the following reasons.

Although the moving papers assert a copy of the affidavit of service for the summons and complaint are annexed as Exhibit "A" in fact no such proof of service is annexed to the moving papers. Only the affidavit confirming the additional mailing as required by CPLR § 3215(g)(3) is attached. Even that mailing appears insufficient, as Plaintiff appears to have information about a different address for the same defendant, as will be further discussed below.

No legible copy of the contract sued upon was annexed to the moving papers. A partial copy without signatures in tiny blurred print is attached as a part of Exhibit "B" but is not legible.

The nonmilitary information is stale as it is dated from January 2015, approximately two years prior to the motion, and prior to the commencement of this action. The non-military affidavit, pursuant to a Civil Court Legal/Statutory Memorandum dated May 27, 2010, should be "contemporaneous" to the entry of judgment and after the default of the defendant (see also Citibank NA v McGarvey 196 Misc 2d 292). Moreover, to the extent that movant relies upon the printout from the Department of Defense, the affidavit must specifically state what information was entered for this specific search. Instead the two year old affidavit states ambiguously that "pertinent information" was provided ".. such as date of birth and/or social security number."

Finally, and most disturbing of all, this is apparently the second law suit that Plaintiff has commenced against Defendant for the same cause of action. A prior lawsuit was commenced in Rockland County as against Defendant and Nicolette Burke [FN1] under Index Number 30217/2014 [FN2] . In that lawsuit, Plaintiff alleged Defendant's address was 327 E. Mosser Street, Allentown Pennsylvania, 18109. Plaintiff made a similar motion for a default judgment in that case. The motion was denied by the court, and the action dismissed pursuant to a decision and order dated April 13, 2015, issued by the Hon. Margaret Garvey. The basis of the dismissal by the court was Plaintiff's failure to properly serve Defendant, whom Plaintiff alleged resided in Pennsylvania.

In his affirmation in support of the motion filed in this action, counsel makes no reference to the prior action in Rockland County. Only based on what appears to be counsel's inadvertence in filing the nonmilitary affidavit from the Rockland County Action as part of this motion, was the court made aware of the prior action. The Summons herein asserts that the basis of Venue in Bronx County is the location of the Defendant. No mailings in this action appear to have been done to the Pennsylvania address, listed as Defendant's address in the Rockland County lawsuit. It is unclear where these two different addresses for Defendant were taken from and why a different address for the same defendant was used in the two different law suits. This is true despite the fact that the same attorney made the motion in each of the two actions.

Yet a third address for Defendant is listed on the affidavit of service for this motion, which asserts the motion papers were mailed to Defendant at 48 Cunningham Street, Rochester, New York 14608, which Plaintiff asserts is Defendant's last known address. This also is a basis to deny the motion for improper service.

Counsel is cautioned to take greater care in the future to apprise the court of any situation where a prior request for the same relief has been made, and advised to review carefully these discrepancies before seeking any further relief in this action.

Based on the forgoing the motion is denied. In the event Plaintiff elects to proceed with this action, any future motion should address and explain these discrepancies.

This constitutes the decision and order of the Court.



Dated: January 17, 2017

Bronx, New York

___________________

Sabrina B. Kraus, JCC

OCA e-submission: no Judge E-Mail Footnotes

Footnote 1:The action was discontinued against Ms. Burke based on a bankruptcy filing.

Footnote 2:The court takes judicial notice of the pleadings and proceedings in the Rockland County action and reviewed the documents from E Courts, a copy of said documents were printed out by the court and will be placed in the file for this action.



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