Fabrizio, Radmin, Buksbaum & Co. v Giordano
Annotate this CaseDecided on November 9, 2007
District Court of Nassau County, First District
Fabrizio, Radmin, Buksbaum & Co., Plaintiff,
against
Thomas G. Giordano, Individually & on Behalf of Country Cleaners Inc., Thomas G. & Katherine Giordano & Thomas G. Giordano & Michael Giordano, Defendants.
515/04
Attorneys for plaintiffs: Law Offices of Paul J. Hooten & Associates
Attorney for defendants: Jay S. Seltzer, Esq.
Andrew M. Engel, J.
On November 13, 2003 the Defendant, Thomas G. Giordano, ("Giordano") both individually and on behalf of the other named Defendants, entered into an agreement with the Plaintiff, acknowledging a debt of $14,490.00 to the Plaintiff and providing that the Defendants would pay this debt by making a one time payment of $1,050.00 and then paying $500.00 per month, until the balance due has been paid in full. At that same time, Giordano executed an Affidavit of Confession of Judgment in the sum of $14,490.00, authorizing the Plaintiff to enter a judgment in the event of a default in payments in accordance with the aforesaid agreement.
On March 23, 2004 the Plaintiff filed the Affidavit of Confession of Judgment in the Nassau County District Court and requested the entry of a judgment in the sum of $13,645.00, inclusive of interest, after crediting the Defendants $2,050.00 in payments. A judgment was then entered against the Defendants, Thomas Giordano and Katherine Giordano, in the Nassau County District Court on March 24, 2004, in the sum of $13,645.00.
The Defendants allege that they knew nothing about the entry of this judgment until Giordano's bank account was levied upon on August 20, 2007. The Defendants now move to vacate the judgment, alleging that they were not in default of their agreement with the Plaintiff at the time the Affidavit of Confession of Judgment was filed and that no judgment should have been entered. The Defendants further allege that they had made all payments required of them prior to March 24, 2004 and continued to make such payments through November 20, 2004, at [*2]which time they only owed $7,000.00 on the principal balance. The Defendants also vaguely allege that he was somehow duped into signing the Affidavit in Confession of Judgment and the underlying agreement because he was not represented by counsel at the time. The Plaintiff has not submitted opposition to this motion.Whether or not the Affidavit of Confession of Judgment herein was obtained by fraud, duress or overreaching, as seems to be implied by the Defendants, may not serve as the basis for a motion to vacate the affidavit or judgment. Such a claim "may only be asserted in a plenary action, thereby permitting development and evaluation of the pertinent facts (citations omitted)." Engster v. Passonno, 202 AD2d 769, 608 NYS2d 740 (3rd Dept.1994); see also: L.R. Dean, Inc. v. International Energy Resources, Inc., 213 AD2d 455, 623 NYS2d 624 (2nd Dept. 1995); Scheckter v. Ryan, 161 AD2d 344, 555 NYS2d 99 (1st Dept.1990) Nevertheless, where the Affidavit of Confession of Judgment is insufficient on its face, or filed in violation of its terms, a motion may serve as the proper vehicle to vacate a judgment entered thereon. See: County National Bank v. Vogt, supra .; Rae v. Kestenberg, supra .
CPLR § 3218 and UDCA § 1403 govern the use of judgments by confession in
the District Court. CPLR § 3218 provides, in pertinent part:
(a).... a judgment by confession may be entered, without an action, either for money
due or to become due, or to secure the plaintiff against a contingent liability in behalf of the
defendant, or both, upon an affidavit executed by the defendant;
1.stating the sum for which judgment may be entered, authorizing the entry of
judgment, and stating the county where the defendant resides or if he is a non-resident, the
county in which entry is authorized;
(b)Entry of judgment.At any time within three years after the affidavit is executed, it
may be filed with the clerk of the county where the defendant stated in his affidavit that he
resided when it was executed or, if the defendant was then a non-resident, with the clerk of the
county designated in the affidavit.
UDCA § 1403 provides:
The provisions of CPLR § 3218, relating to judgment by confession, shall be applicable in this court where the relief for which the judgment is confessed is within the jurisdiction of this court, provided, with reference to paragraph one of subdivision (a) of said section, that the affidavit specify that the defendant is a resident of a district of t his court or, if he is not such a resident, that entry is authorized in this court, designating the district. If such additional requirements are fulfilled, the words clerk of the county' as used in subdivision (b) of said section shall be deemed a reference to the clerk of the court in the district specified, and the judgment confessed shall be entered in this court and shall be enforcible in the same manner and with the same effect as a judgment in an action in this court." The requirements of these statutes are to be scrupulously followed, County National Bank v. Vogt, 28 AD2d 793, 280 NYS2d 1016 (3rd Dept. 1967); aff'd 21 NY2d 800, 288 NYS2d 631 (1968); Terezakis v. Goldstein, 168 Misc 2d 298, 640 NYS2d 1005 (Sup. Ct. NY Co. 1996), and "a liberal attitude should be assumed in favor of the judgment debtor (4 Weinstein-Korn-Miller, New York Civil Practice, 32-237)." Rae [*3]v. Kestenberg, 23 AD2d 565, 256 NYS2d 737 (2nd Dept. 1964); aff'd 16 NY2d 1023, 265 NYS2d 904 (1965); see also: Ripoll v. Rodriguez, 53 AD2d 638, 384 NYS2d 504 (2nd Dept. 1976)As is apparent from the plain language of UDCA § 1403, the Clerk of the District Court may enter a judgment by confession where the affidavit upon which the judgment is to be based specifies "that the defendant is a resident of a district of this court or, ..., that entry is authorized in this court, designating the district." The Affidavit of Confession of Judgment herein, which indicates that the Defendants are residents of Suffolk County and that the Plaintiff is authorized to enter judgment in Suffolk County, does neither. Accordingly, a judgment may only have been entered upon this Affidavit of Confession of Judgment in accordance with the terms of CPLR § 3218, "with the clerk of the county where the defendant stated in his affidavit that he resided when it was executed or, if the defendant was then a non-resident, with the clerk of the county designated in the affidavit." See: Irons v. Roberts, 206 AD2d 683, 614 NYS2d 792, (3rd Dept.1994); Terezakis v. Goldstein, supra .
Having improperly filed this Affidavit of Confession of Judgment in the Nassau County District Court, instead of with the Suffolk County Clerk, the judgment obtained thereon is void as a matter of law, Williams v. Mittlemann, 259 A.D. 697, 20 NYS2d 690 (2nd Dept. 1940); Irons v. Roberts, supra .; Terezakis v. Goldstein, supra ., and must be vacated. Accordingly, it is hereby
ORDERED, that the judgment entered against the Defendants, Thomas Giordano and Katherine Giordano, on March 24, 2004, in the sum of $13,645.00 is hereby vacated; and that any restraints upon said Defendants' assets pursuant thereto are vacated as well.
This constitutes the decision and order of this court.
Dated: Hempstead, New York
November 9, 2007
___________________________
Andrew M. Engel
J.D.C.
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