Unifund CCR Partners v Aviles

[*1] Unifund CCR Partners v Aviles 2017 NY Slip Op 51706(U) Decided on December 18, 2017 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Ling-Cohan, Gonzalez, JJ.
570266/17

Unifund CCR Partners, Plaintiff-Appellant,

against

Maria Aviles a/k/a Maria Cruz, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Llinet M. Rosado, J.), dated October 28, 2016, which granted defendant's motion to vacate a default judgment, dismissed the action and directed plaintiff to return all funds collected.

Per Curiam.

Order (Llinet M. Rosado, J.), dated October 28, 2016, reversed, with $10 costs, defendant's motion denied, complaint and default judgment reinstated, and matter remanded for a hearing to determine whether the judgment has been satisfied.

The motion court erred when it sua sponte dismissed the complaint on the ground that defendant filed an answer and entered into a stipulation of settlement prior to service of the summons and complaint. This ground for relief was not raised by defendant below or briefed by the parties (see Frank M. Flower & Sons, Inc. v North Oyster Bay Baymen's Assn., Inc., 150 AD3d 965, 966 [2017]), and, in any event, is unavailing, since defendant, by her appearance in the action without having been served and without raising an objection, became "a volunteer and is subject to in personam jurisdiction" (Urena v NYNEX, Inc., 223 AD2d 442, 444 [1996] [internal quotation omitted]; see CPLR 320[b]). Moreover, any jurisdictional defense was further waived by defendant when she entered into a stipulation of settlement and made payments pursuant to a wage garnishment for a substantial period (see Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627, 628 [2014]). Nor has defendant established any other legal basis for vacating the judgment (see CPLR 5015[a]; Woodson v Mendon Leasing Corp., 100 NY2d 62, 69 [2003]).

We remand the matter for a hearing to determine whether the judgment has been satisfied (see CPLR 5021[a][2]; Kazi v General Elec. Capital Bus. Asset Funding Corp. of Conn., 116 AD3d 592 [2014]), the only relief, in effect, requested by defendant.

Defendant's remaining arguments are improperly raised for the first time on appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 18, 2017