LR Credit 10, LLC v Parrado

[*1] LR Credit 10, LLC v Parrado 2015 NY Slip Op 51083(U) Decided on July 14, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ.
2013-2655 Q C

LR Credit 10, LLC, Appellant,

against

Ana C. Parrado, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered October 16, 2013. The order, upon a prior order of the same court (Richard G. Latin, J.) dated March 23, 2013 setting the matter down for a traverse hearing, following the traverse hearing, granted defendant's motion to vacate a default judgment and dismissed the complaint.

ORDERED that the order entered October 16, 2013 is reversed, without costs, the order dated March 23, 2013 setting the matter down for a traverse hearing is vacated, defendant's motion to vacate the default judgment is denied and the default judgment is reinstated. Plaintiff commenced this action to recover the principal sum of $10,284.36 based on an alleged breach of a credit card agreement. The affidavit of service states that service was effectuated, pursuant to CPLR 308 (2), by serving a person of suitable age and discretion, and mailing. On December 18, 2006, a default judgment was entered against defendant. Thereafter, plaintiff received payments regularly through wage garnishments from October 10, 2009 to December 17, 2012, whereby a total sum of $8,768.60 was garnished. In January 2013, defendant moved to vacate the default judgment on the ground that the court lacked personal jurisdiction over her. By order dated March 23, 2013, the Civil Court (Richard G. Latin, J.) set the matter down for a traverse hearing. At the traverse hearing, plaintiff's process server did not appear. By order entered October 16, 2013, the court (Jodi Orlow, J.), based on plaintiff's failure to produce the process server, granted defendant's motion to vacate the default judgment and dismissed the complaint.

In our view, defendant waived her defense of lack of personal jurisdiction by waiting more than three years after her wages had been garnished before moving to vacate the default judgment (see Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627 [2014]; Calderock Joint Ventures, L.P. v Mitiku, 45 AD3d 452 [2007] [defendant waived defense of personal jurisdiction by making payments on the deficiency judgment under a wage garnishment order for over one year before moving to vacate the judgment]; West 187 St. Assoc. v Rojas, 37 Misc 3d 135[A], 2012 NY Slip Op 52110[U] [App Term, 1st Dept 2012]). Consequently, the Civil Court, in its March 23, 2013 order, should have denied the motion rather than setting the matter down for a traverse hearing.

Accordingly, the order entered October 16, 2013 is reversed, the order dated March 23, 2013 setting the matter down for a traverse hearing is vacated, defendant's motion to vacate the default judgment is denied and the default judgment is reinstated.

Pesce, P.J., Weston and Solomon, JJ., concur.

Decision Date: July 14, 2015