Ford Motor Credit Co. v Bobo

[*1] Ford Motor Credit Co. v Bobo 2003 NY Slip Op 51464(U) Decided on December 5, 2003 District Court Of Nassau County 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 This opinion is uncorrected and will not be published in the printed Official Reports.


Digest-Index Classification:Process—Service of Process
Decided on December 5, 2003
District Court Of Nassau County

FORD MOTOR CREDIT COMPANY, Plaintiff(s)

against

GEORGE BOBO, Defendant(s)



INDEX NO. 04370/03



Rubin & Rothman, LLC Attorneys for Plaintiff

1787 Veterans Highway

Islandia, NY 11749

George Bobo

Defendant Pro Se

HOWARD S. MILLER

DATE:December 5, 2003

By Order to Show Cause dated August 21, 2003, Defendant moves pro se to vacate a default judgment dated April 10, 2003. Defendant does not contest service of process, but he alleges that he attempted to answer the complaint, albeit without retaining a copy, and he speculates that the answer went missing because he neglected to put the index number on it. Plaintiff alleges that it never received an answer, but Plaintiff nevertheless consents to allowing the action to proceed on the merits, with the judgment to stand as security.

In reviewing the file, the Court notes that this is the third action that Plaintiff has [*2]commenced against the Defendant, the first two having resulted in default judgments, and having ended after traverse hearings. The Court also notes that this action was commenced by serving, on the Defendant on January 21, 2003, in the courthouse after the second traverse hearing, an un-redated copy of the summons and complaint from the second action. The summons and complaint were not filed, however, until February 20, 2003, in violation of UDCA 409. Therefore, the default judgment in this action never should have been entered, and it is hereby vacated.

The Court takes a very dim view of a plaintiff who serves process in the courthouse on a defendant who has appeared for a traverse hearing. Although the rule in New York is that a resident defendant has no immunity from courthouse service (see Department of Housing Preservation v Koenigsberg, 133 Misc2d 893 [Civ Ct, New York County 1986], and cases cited therein), the practice is "disapproved" by the Courts. The undersigned would be inclined to go further and hold that the practice is prohibited when a resident defendant is present for a traverse hearing, for the same reason that non-resident defendants are immune. "The basis of the rule [about non-residents] is the concept that a party should be allowed to contest jurisdiction without risk." Koenigsberg, supra, at 897. A defendant present in the courthouse for a traverse hearing, whether resident or non-resident, is contesting jurisdiction. Allowing re-service on him makes a mockery of the traverse hearing and essentially allows the plaintiff to use a defective default judgment as a weapon with which to compel the defendant to submit to service of process.

In Koenigsberg, the defendant was easily amenable to service by other means, so dismissing the action would have elevated form over substance. In the current case, the Defendant apparently is not easily amenable to service of process, and the Plaintiff has used a defective default judgment, and the Court as an unwitting accomplice, to force the Defendant to be served personally. The Court does not care for that role.

Nevertheless, both parties seem anxious to resolve this dispute on the merits. Accordingly, the Court will not dismiss this action, but rather will direct that the summons and complaint shall be deemed filed nunc pro tunc, pursuant to UDCA 411, and the Defendant shall answer the complaint not later than January 5, 2004. The action shall proceed thereafter on the merits in the ordinary course.

In view of the history of this case and its predecessors, the Court further orders that the Plaintiff shall take no default judgment in this action except on motion returnable before the undersigned.

So Ordered.

Decision Date: December 05, 2003