Cach, LLC v Scott

Annotate this Case

Download PDF

Cach, LLC v Scott 2012 NY Slip Op 33650(U) August 30, 2012 Sup Ct, Bronx County Docket Number: 0306023/2008 Judge: Lucindo Suarez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Sep 06 2012 Bronx County Clerk NEW YORK SUPREME COURT - COUNTY OF BRONX Mot. Seq. Ql PART19 Case Disposed 0 Settle Order 0 Schedule Appearance 0 SUPREME CJllJE.T OF THE STATE OF NEW YORK co~~Y"cJFBRO'NX: -----;--------------------~-----------------------------------------X ,~CH,LLC J Index N2 . 0306023/2008 - against - Hon. LUCINDO SUAREZ, Justice. SCOTT, EU GENNIE L. ---------------------------------------------------------------------X The following papers numbered 1 to~ read on this motion, VACATE ORDER/JUDGMENT -N ot1ce d on A ugus t 27 2012 an d du1 subm1tte d as N o. 2 on th e M ot10n C a1 dar of A mm st 27 2012 . . . y en ' ·- -·-· . ' ·----·-"" Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Answering Affidavit and Exhibits PAPERS NUMBERED 1, 2, 3 4,5 -· ¢\ l ') . Replying Affidavit and Exhibits ... .,. "''"'" -· ¢'-'' ~ -,, I- Sur-replying Affidavit and Exhibits r,. !v(. SB 0 5 2012 Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers ., .. ~- ...... ·~ ·- ... __ Memoranda of Law Upon the foregoing papers, respondent's motion to vacate the confirmation of an arbitration award is denied, in accordance with the annexed decision and order. Dated: 08/30/2012 . -·. ..--::· ,' . ~ ~~~ -- -~.; [* 2] FILED Sep 06 2012 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: I.A.S. PART 19 --------------------------------------------------------·------------X . CACH,LLC, DECISION AND ORDER Petitioner, Index No. 306023/2008 - against EUGENNIE L. SCOTT, Respondent. --------------------------------------------------------------------X PRESENT: Hon. Lucindo Suarez Upon respondent's order to show cause signed August 14, 2012 and the affidavit and exhibits submitted in support thereof; petitioner's affirmation in opposition dated August 23, 2012 and the exhibits annexed thereto; and due deliberation; the court finds: Petitioner Cach, LLC commenced this proceeding pursuant to CPLR 7510 to confirm an arbitration award entered against respondent Eugennie L. Scott in the amount of nineteen thousand four hundred eighty dollars and twenty-seven cents ($19,480.27) and for an order directing entry of the judgment. By decision and order dated August 28, ·2008, this court confirmed the award, and a judgment was entered on April 23, 2009 against respondent in the amount of twenty-three thousand ninety-two dollars and sixteen cents ($23,092.16). Respondent did not appear for arbitration nor did she respond to the petition. Respondent, who appears pro se, now moves to vacate the order confirming the arbitration award on the ground that she never received notice of the petition. Respondent also submits that (1) she never had a credit card contract with Maryland National Bank; (2) she never agreed to arbitration; (3) petitioner lacked standing to collect the award; (4) she owes no money to Maryland National Bank; (5) the National Arbitration Forum is no longer active due to fraudulent arbitration awards; and (6) [* 3] FILED Sep 06 2012 Bronx County Clerk petitioner has waited over three years to collect on the judgment. Respondent submits her affidavit along with copies of a notice of garnishment and income execution, the judgment, and excerpts from the court's file for this proceeding. Petitioner opposes the application and submits copies ofits motion to confirm the arbitration award, an affidavit for service of the petition, this court's order, and the judgment. Although respondent fails to cite the CPLR provisions on which relief may be granted, it is apparent from the underlying papers relief may be granted pursuant to CPLR 5015 or 317. To the extent that relief is predicated upon CPLR 5015(a)(4) (lack of jurisdiction), the motion fails. The affidavit of service of the petition, which is annexed to petitioner's opposition, reveals service was made pursuant to CPLR 308(4). Licensed process server Walid Ibrahim averred that he affixed the notice of petition, petition, and request for judicial intervention to the door ofrespondent's home and that he mailed copies of those documents to the same address. An affidavit of service in appropriate form constitutes prima facie evidence that service was properly effectuated. See Chinese Consol. Benevolent Ass 'n v. Chan Tsang, 254 A.D.2d 222, 679 N.Y.S.2d 54 (1st Dep't 1998). To raise an issue of fact with respectto service, defendantmust set forth specific probative facts; unsubstantiated and conclusory denials ofreceipt are insufficient. See Chinese Consol., supra; Rosario v. Beverly Rd. Realty Co., 38 A.D.3d 875, 833 N.Y.S.2d 166 (2d Dep't 2007). The mere denial of receipt of service without further elaboration is thus insufficient to dispute the "veracity or content" of such an affidavit. Fairmount Funding v. Stefansky, 235 A.D.2d 213, 214, 652 N.Y.S.2d 14, 14 (1st Dep't 1997). Moreover, "a properly executed affidavit of service raises a presumption that a proper mailing occurred." Engel v. Lichterman, 62 N.Y.2d 943, 944, 468 N.E.2d 26, 27, 479 N.Y.S.2d 188, 189 (1984). The court finds that respondent's affidavit contains only a general, conclusory denial ofreceipt of the petition, which was served at her residence. Respondent 2 [* 4] FILED Sep 06 2012 Bronx County Clerk offers no proof disputing the veracity of the statements contained in the process server's affidavit, see Fairmount Funding v. St"ejansky, supra, nor does the affidavit contain "specific facts to rebut the statements in the process server's affidavits" sufficient to warrant a hearing. Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682, 683 (2d Dep't 2009). Given the absence ofa reasonable excuse, relief under CPLR 5015(a)(1) is also unavailable. See MR. v. 2526 Valentine LLC, 58 A.D.3d 530, 871N.Y.S.2d131 (1st Dep't 2009); Time Warner City Cable v. Tri State Auto, Inc., 5 A.D.3d 153, 772 N.Y.S.2d 512 (1stDep't), appeal dismissed, 3 N.Y.3d 656, 816N.E.2d 569, 782 N.Y.S.2d 696 (2004). CPLR 317 affords an alternative basis for relief, see Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co., 67 N.Y.2d 138, 492 N.E.2d 116, 501N.Y.S.2d8 (1986), upon a showing that respondent did not receive notice of the petition in time to defend and has a meritorious defense to the action. The affidavit of service demonstrates that respondent was not personally served. Respondent, though, has .not demonstrated that she has a meritorious defense to the action. A National Arbitration Forum Claim and a Notice of Arbitration were served upon respondent at her home on April 19, 2007. The forms identified MBNA America ("MBNA") and petitioner, as MBNA's successor-in-interest, as claimants in the arbitration proceeding. Respondent has not denied receipt of those documents nor has she denied that her credit card was issued by MBNA or that her cardholder agreement included a provision that required arbitration of the claim. See CPLR 7501. Questions as to the validity of the arbitration agreement should have been brought in an action to stay the arbitration under CPLR 7503(b ), at the arbitration, or in an application to vacate or modify the award. See Matter of MBNA Am. Bank, NA. v. Stehly, 19 Misc.3d 12, 855 N.Y.S.2d 814 (App. Term 2d Dep't 2008). Respondent defaulted in appearing for arbitration and she did not seek to vacate or ) modify the award within the time permitted by statute. See CPLR 7511; Matter ofKunju v. MTA, 94 A.D.3d 585, 942 N.Y.S.2d 350 (1st Dep't 2012). 3 Respondent submits no documentary proof [* 5] FILED Sep 06 2012 Bronx County Clerk substantiating her claim of fraud, allegedly perpetrated by arbitrator Daniel P. Lund, Esq. and the National Arbitration Forum. See Scollar v. Cece, 28 A.D.3d 317, 812 N.Y.S.2d 521 (1st Dep't 2006). Similarly, respondent submits no doctimentary proof substantiating her allegation that the petitioner lacked standing to seek confirmation of the arbitration award. Respondent's defense oflaches does not concern a defense to the proceeding but an objection to petitioner's purported delay in enforcing the judgment. Accordingly, it is ORDERED, that the motion by respondent Eugennie L. Scott to vacate the decision and order of the court dated August 28, 2008, which confirmed an arbitration award against respondent, is denied. This constitutes the decision and order of the co Dated: August 30, 2012 Lucindo Suarez, J.S.C. 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.