Clover Commercial Corp. v Isidore

[*1] Clover Commercial Corp. v Isidore 2007 NY Slip Op 51837(U) [17 Misc 3d 126(A)] Decided on September 21, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and MOLIA, JJ
2006-1689 N C.

Clover Commercial Corp., Respondent,

against

Samuel Isidore, Appellant.

Appeal from an order of the District Court of Nassau County, Second District (Valerie Bullard, J.), entered July 20, 2006. The order denied defendant's motion to vacate a default judgment.

Order affirmed without costs.

On or about April 26, 1994, plaintiff commenced the instant action for breach of a retail installment contract to finance the purchase of a vehicle. Defendant filed a verified answer in which he denied liability. Pursuant to Part 28 of the Rules of the Chief Judge, an arbitration hearing was held on August 30, 1994, which resulted in
an award in plaintiff's favor upon defendant's failure to appear. Defendant's motion to vacate the default and award, and to restore the action to the arbitration calendar was subsequently granted, and a second arbitration hearing was held on January 11, 1995 at which defendant again failed to appear. Plaintiff was awarded $3,092.43, and judgment in the aggregate amount of $3,267.43 was entered on April 21, 1995.

On May 15, 2006, defendant was served with an income execution and on May 23, 2006, he moved by way of order to show cause to vacate the judgment, asserting that he had never received notice of the default judgment until service of said income execution. He claimed not to have been notified of the 1995 arbitration proceeding and not to have had any knowledge of the default judgment until now. He further alleged that he had not entered into a contract with plaintiff and therefore did not owe it any money. In an affirmation in opposition, plaintiff's [*2]counsel set forth a lengthy history of litigation between the parties, alleging, inter alia, that defendant had prior knowledge of the default judgment which had been entered against him.

Where a party fails to appear at a mandatory arbitration hearing, that party may move for vacatur of the judgment, the default and the award and may seek restoration to the arbitration calendar "upon good cause shown" (Rules of the Chief Judge [22 NYCRR] § 28.7 [a]). In this case, defendant did not demonstrate "a valid reason for his failure to proceed with the arbitration" (Finamore v Huntington Cardiac Rehabilitation Assn.,150 AD2d 426, 427 [1989]; see also Brothers Aluminum Corp. v Boggio, 12 Misc 3d 130[A], 2006 NY Slip Op 51049[U] [App Term, 9th & 10th Jud Dists]; Amedeo v Century 21 Bayway Realty Corp., 2 Misc 3d 135[A], 2004 NY Slip Op 50214[U] [App Term, 9th & 10th Jud Dists]). His contention that he knew nothing of the judgment until May 15, 2006, when he was served by the New York City Marshal with the income execution, is not credible and, in any event, is belied by the record. Accordingly, the court below properly denied his motion.

With respect to defendant's contentions regarding plaintiff's attorney's authority to issue the income execution or the Marshal's authority to serve him with the income execution, we note that said arguments are not relevant to the motion to vacate the
judgment, default and the award, and are best addressed in a motion pursuant to CPLR 5240, which permits a judgment debtor to move to deny, limit, condition, regulate, or modify the use of any post-judgment enforcement procedure, including an income execution.

Rudolph, P.J., McCabe and Molia, JJ., concur.
Decision Date: September 21, 2007