Weisman v Cohen

[*1] Weisman v Cohen 2010 NY Slip Op 51382(U) [28 Misc 3d 1217(A)] Decided on February 23, 2010 Supreme Court, Ulster County Zwack, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 23, 2010
Supreme Court, Ulster County

Leonard Weisman, Plaintiff,

against

HARVEY COHEN, Defendant.



04-2062



Edward J. Carroll, Esq.

Attorney for Defendant

2733 Route 209

Kingston, New York 12401

Henry F. Zwack, J.

In this breach-of-contract action, defendant moves to vacate the default judgment and for summary judgment dismissing the complaint. Proof of service has been filed but plaintiff has not responded or opposed the motion.

A default judgment was signed on October 18, 2004 by the Ulster County Clerk in the principal amount of $25,000.00.

Defendant moves to vacate the default judgment, arguing that there was no personal jurisdiction obtained over defendant. Defendant submits an affidavit on the present motion in which he avers that he did not have notice of this action and the judgment entered against him until he received a notice on December 24, 2009 from the Ulster County Sheriff's Department. Defendant attaches a filed copy of plaintiff's [*2]application for an index number, which was filed on July 8, 2004. A "Summons with Notice", dated July 1, 2004 was filed on July 8, 2004. As noted by defendant, although captioned as a "Summons with Notice", the summons in fact does not provide any notice and references as follows "The object of this action is: see attached verified complaint." On September 8, 2004 an affidavit of service was filed, evidencing service upon defendant with a summons and verified complaint on August 12, 2004. On October 18, 2004 the same summons with notice dated July 1, 2004 was filed with the County Clerk, along with a verified complaint dated July 1, 2004. Plaintiff's application for a default judgment was filed on October 18, 2004, consisting of an affidavit of plaintiff, an affidavit of an employee of plaintiff's law firm regarding service requirements, and an attorney affirmation. As noted above, a default judgment was signed by the Ulster County Clerk and filed on October 18, 2004.

Defendant argues that the failure to file a summons with notice or verified complaint prior to the purported service upon defendant mandates a finding that this action was not properly commenced prior to purported service of the initial pleadings on defendant. Defendant notes that the only document on file in the Ulster County Clerk's office on August 12, 2004, the date of the purported service on defendant of a summons and verified complaint, was the "Summons with Notice" dated July 1, 2004 which was in fact a bare summons and not a summons with notice.

Defendant also notes that despite the plain statements in the verified complaint that the amount remaining on the $25,000 debt was $16,000.00, plaintiff submitted an affidavit in support of his motion for default judgment stating that the full $25,000.00 was still owing.

Defendant also moves for summary judgment, arguing that the statute of limitations has now expired for the debt.

The Court concurs with defendant that, based upon the filed documents, this proceeding was not properly commenced and the default judgment signed and entered on October 18, 2004 should not have been entered and was also entered in an erroneous amount. The Court finds that defendant has set forth sufficient grounds pursuant to CPLR 5015, which include misrepresentation of the adverse party and lack of jurisdiction, to obtain relief from the default judgment based upon the facts and circumstances set forth in defendant's motion papers. As of the date of the purported service upon defendant, neither a summons with notice nor verified complaint had been filed with the Ulster County Clerk in this proceeding. The summons dated July 1, 2004 does not meet the requirements for a summons with notice because it fails to give any notice of the nature of the proceeding or the relief demanded. Any service upon defendant was prior to proper commencement of this action, and therefore the default judgment was granted in error (Parker v Mack, 61 NY2d 114 [1984]; Miller v Waters, 51 AD3d 113 [3d Dep't 2008]). The Court also notes that the nature of the alleged defect compels a finding that it is jurisdictional and not within the Court's discretion to disregard [*3](CPLR §§2001, 304). Based upon the foregoing, the Court vacates the default judgment signed and entered by the Ulster County Clerk in this proceeding on October 18, 2004.

The Court also grants defendant's motion for summary judgment. The alleged debt in this proceeding, based upon plaintiff's verified complaint dated and verified July 1, 2004, was incurred in December 2001 and was in the nature of a loan from plaintiff to defendant. Plaintiff alleges that the loan was due to be repaid within 60 days or upon demand and plaintiff noted defendant's payment of a total of $9,000.00 but failure or refusal to pay the additional $16,000.00 despite Plaintiff's demands. Defendant has set forth prima facie entitlement to judgment as a matter of law based upon the expiration of the statute of limitations (CPLR 213). Plaintiff has failed to oppose or otherwise respond to this motion. Based upon the foregoing, the Court finds that defendant is entitled to summary judgment based upon expiration of the statute of limitations.

Accordingly, it is

ORDERED, that defendant's motion is granted in its entirety; and it is further

ORDERED, that the default judgment signed and entered on October 18, 2004 by the Ulster County Clerk in this proceeding is hereby vacated; and it is further

ORDERED, that defendant's motion for summary judgment is granted and this proceeding is dismissed as set forth above.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendant. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:February 23, 2010

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice