Ford Motor Credit Co. v Hooker

[*1] Ford Motor Credit Co. v Hooker 2018 NY Slip Op 51877(U) Decided on December 13, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : BRUCE E. TOLBERT, J.P., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
2017-1973 N C

Ford Motor Credit Company, Respondent,

v

Christopher Hooker, Appellant.

Christopher Hooker, appellant pro se. Rubin & Rothman, LLC (Michael K. Johnson of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (Robert E. Pipia, J.), entered August 18, 2017. The order denied defendant's motion to vacate a judgment of that court entered July 12, 2004 upon defendant's failure to appear or answer the complaint.

ORDERED that the order is affirmed, without costs.

In this action to recover for breach of an automobile lease agreement, upon defendant's failure to appear and answer the complaint, a judgment was entered on July 12, 2004 awarding plaintiff the sum of $14,828.13. In November 2004, pursuant to an execution with notice to garnishee, defendant's bank account was levied upon and plaintiff recovered the sum of $1,339.98. In July 2005, plaintiff recovered an additional $1,282.12 when defendant's wages from his employer were garnished. In plaintiff's continuing efforts to enforce the judgment, plaintiff's attorney issued an information subpoena to defendant's employer in March 2014. In a letter dated April 4, 2014, defendant sent plaintiff's counsel a "Notice of Dispute of Alleged Debt" pursuant to the Fair Debt Collection Practices Act (15 USC § 1692 et seq.). In August 2016, plaintiff's attorney sent defendant's current employer an information subpoena, and, on March 2, 2017, the sheriff delivered an income execution to defendant's employer. On March 16, 2017, defendant moved to vacate the 2004 default judgment on the ground that he had never been personally served with process. By order entered August 18, 2017, the District Court denied the motion.

Plaintiff established that defendant sat idly by for over 13 years after the judgment had been entered and about 12 years after his bank account had been levied upon by the marshal on November 8, 2004, and his wages had been garnished on July 8, 2005, before he decided to move to vacate the default judgment in March 2017. Defendant's delay evidenced a willingness to accede to the terms of the judgment (see Calderock Joint Ventures, L.P. v Mitiku, 45 AD3d 452 [2007]; Cooper v Carlson,130 AD2d 703 [1987]; LR Credit 10, LLC v Parrado, 48 Misc 3d 134[A], 2015 NY Slip Op 51083[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; West 187 St. Assoc. v Rojas, 37 Misc 3d 135[A], 2012 NY Slip Op 52110[U] [App Term, 1st [*2]Dept 2012]). Consequently, defendant is deemed to have waived his defense of lack of personal jurisdiction.

Accordingly, the order is affirmed.

TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2018