Moore v Hall

[*1] Moore v Hall 2013 NY Slip Op 51690(U) Decided on October 8, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 8, 2013
Supreme Court, Kings County

Rachid Moore, Plaintiff,

against

Phillip Hall and JOHN R. THENOR, Defendants.



21670/2006



Plaintiff's Attorney: Feder & Rodney, PLLC, 105 Court Street, Suite 511, Brooklyn, NY 11201

Defendant's Attorney: Abel L. Pierre, Esq., 40 Exchange Place, Ste. 2010, New York, NY 10005

David I. Schmidt, J.

Defendant John R. Thenor (Thenor) moves for an order (i) vacating the default judgment entered against him, dated March 23, 2007, for failure to appear and answer; and (ii) dismissing the complaint for want of prosecution and for lack of personal jurisdiction.[FN1] Plaintiff opposes.

I.Background

On July 24, 2003, Thenor was operating a motor vehicle owned by defendant Phillip Hall, which struck and injured plaintiff at the intersection of Flatbush Avenue and Bergen Street in Brooklyn, New York. On July 20, 2006, plaintiff commenced an action by filing a summons and complaint. Between July 27, 2006 and July 31, 2006, plaintiff, through a licenced process servicer, made three attempts to personally serve Thenor with a copy of the summons and complaint at 411 Ocean Avenue, Brooklyn New York, Thenor's last known address. See affirmation of Adam B. Feder aff. (Feder aff.), Ex. B (affidavit of service). On each of those occasions, the process server was unable to find either the defendant or a person of suitable age or discretion on whom to serve the papers. Id. Accordingly, plaintiff resorted to serving defendant by affixing true copies of the summons and complaint to the door of his residence and by regular first class mail. Id.

On January 2, 2007, plaintiff filed a motion for default judgment against Thenor and sent a copy by first class mail to Thenor's last known address, and on February 23, 2007, an amended copy of the motion was also sent via first class mail to the same address. Upon Thenor's failure [*2]to appear at the hearing on March 23, 2007, the court granted plaintiff's motion for a default judgment. On May 9, 2007, a copy of the order with notice of entry was sent to Thenor's last known address. On March 30, 2007, pursuant to the court's order, a Note of Issue was also sent to Thenor. At an inquest held on July 18, 2007, plaintiff received a default judgment against both defendants in the amount of $75,000.00. None of the documents sent by first class mail to Thenor at 411 Ocean Avenue, Brooklyn, New York were returned to plaintiff as undeliverable.

II.Discussion

A.Defendant's Contentions:

In moving to vacate the judgment, Thenor asserts that he has a reasonable excuse for failing to appear. Specifically, Thenor avers that:

1.I was never served with a summons and complaint. 2.Plaintiff had a police report which indicated my name and address, but plaintiff never served me either personally or via nail and mail.3.Plaintiff never served anyone of suitable age or discretion because none of my co-tenants ever received a copy of the summons and complaint.4.Plaintiff knows that he did not serve me with a copy of the summons and complaint because a review of the clerk's minutes and an examination of the physical court records reveal that plaintiff never filed an affidavit of service of the summons and complaint and could not file such an affidavit without perjuring himself jury because he never served me.

See affidavit of John R. Thenor, sworn to September 13, 2013 (Thenor aff.), ¶¶ 2-6.

In addition, Thenor claims to have a meritorious defense, in that: 1.The injuries and damages suffered by plaintiff were the proximate result of plaintiff's own carelessness and negligence.

2.Plaintiff failed to mitigate damages.

3.Plaintiff failed to take evasive action to avoid the alleged incident.

Id., ¶¶ 7-9.

B.Analysis:

CPLR 317 and 5015 (a)(1) allow a defendant against whom a default judgment has been rendered to move to vacate that default. CPLR 317 provides that "[a] person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318 . . . who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense." Thus, this statute is available only to a defendant who (1) was [*3]served by a method other than personal delivery, (2) moves to vacate the judgment within one year of learning of it (but not more than five years after entry), and (3) demonstrates a potentially meritorious defense to the action. By contrast, CPLR 5015 (a)(1) is available to any defendant against whom a default judgment was entered, provided that the defendant can demonstrate both a reasonable excuse for the default and a potentially meritorious defense. A defendant seeking relief under section 5015(a)(1) must move to vacate the default judgment within one year of service on defendant of the default judgment with notice of entry. Both provisions assume personal jurisdiction exists over the defaulting defendant and provide that party with an opportunity to open the default and contest the merits of the plaintiff's claim. See Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 89-93 (2010 ed); see also David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:6, at 210 (2007 ed).

If the defaulting defendant asserts that the court lacked personal jurisdiction over him or her (as does defendant herein), the defendant should seek dismissal of the action under CPLR 5015(a)(4). See Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 90. A motion under subsection 4 has no stated time limit and can be made at any time. See David D. Siegel, Practice Commentaries, McKinney's Cons Laws, Book 7B, CPLR C5015:3, at 205-206. Moreover, "[w]hen a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)." Roberts v Anka, 45 AD3d 752, 753 (2d Dept 2007), lv dismissed 10 NY3d 851 (2008). Accordingly, the court first turns to the question of whether it has obtained jurisdiction over Thenor based on his claim that he was not served with the summons and complaint.

At the outset, the court notes that it finds the statements in Thenor's affidavit (supra) to amount to little more than a unsupported denial of receipt of service. Significantly, however, a bald and conclusory denial of receipt of service is insufficient to rebut the presumption of proper service created by a process server's affidavit. See Burekhovitch v Tatarchuk, 99 AD3d 653, 653 (2d Dept 2012) (reversing trial court's grant of defendants' CPLR 5014[a][4] motion, because "process server's affidavit of service constituted prima facie evidence of proper service upon the defendants pursuant to CPLR 308(4), and [defendants'] unsubstantiated denials of receipt of the summons and complaint were insufficient to rebut that showing"); see also Deutsche Bank Nat. Trust Co. v Jagroop, 104 AD3d 723, 724 (2d Dept 2013); U.S. Bank Nat. Ass'n v Hossain, 94 AD3d 979, 979-80 (2d Dept 2012); Fairmount Funding Ltd. v Stefansky, 235 AD2d 213, 214 (1st Dept 1997).

Furthermore, where part of the service consists of a mailing to the defendant, there is a presumption that a properly mailed letter was received by the addressee. See e.g. Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525 (2d Dept 2008). Here, Thenor does not deny that 411 Ocean Avenue, Brooklyn, New York 11226 was his address at the time that plaintiff claims that service was made pursuant to CPLR 308(4), and thus, the presumption remains unrebutted. In short, Thenor has failed to sufficiently demonstrate that he did not receive the summons and complaint in time to defend this action. Consequently, Thenor cannot [*4]rely on CPLR 5015(a)(4) to lift the default or to dismiss the complaint.[FN2]

Given this conclusion, Thenor is not entitled to vacatur pursuant to CPLR 317 or 5015(a)(1) as he has failed to demonstrate that he did not receive actual notice of this action in time to defend. Moreover, even if the court were to reach the issue of a meritorious defense, Thenor likewise fails to satisfy that requirement. Defendant's claims of a meritorious defense (see Thenor aff., ¶¶ 7-9) appear deficient in that there is a dearth of factual allegations. See Peacock v Kalikow, 239 AD2d 188 (1st Dept 1997) (affidavit of merit must contain factual detail, not mere conclusory or vague assertions); Kolajo by Kolajo v City of New York, 248 AD2d 512, 513 (2d Dept 1998).

However, in researching the issue of whether failure to file the affidavit of service has any bearing on the court's jurisdiction over Thenor (footnote 2, supra), the court uncovered another consideration that compels vacatur of the judgment. While admittedly not jurisdictional in nature, the purpose of requiring the filing of proof of service pertains directly to the time within which a defendant must answer. Penachio v Penachio, 27 AD3d 540, 541 (2d Dept 2006). It is a step in making service complete under CPLR 308(2) and (4), which in turn triggers the defendant's responsive obligations under CPLR 320(a). Lancaster v Kindor, 98 AD2d 300, 306 (1st Dept 1984). As applied to the instant case, Thenor's obligation to answer or otherwise respond to the complaint never began to run due to plaintiff's failure to file the affidavit, and therefore, the default judgment is a nullity and must be vacated.

While, ordinarily, plaintiff's failure can be cured by order of the court allowing the filing nunc pro tunc, that is not the case where, like here, such relief would be to a defendant's prejudice by placing the defendant in default as of a date prior to the order, and gives effect to a default judgment that was otherwise a nullity prior to that time. See Rosato v Ricciardi, 174 AD2d 937, 938 (3d Dept 1991). As the court observed in Rosato: By granting plaintiff relief nunc pro tunc Supreme Court not only gave plaintiff a remedy, but made that relief retroactive to defendants' prejudice by placing defendants in default as of a date prior to the order. It also gave effect to a default judgment which prior thereto was a nullity requiring vacatur . . . Accordingly, the default judgment should have been vacated, plaintiff granted permission to file the proof of service pursuant to CPLR 2001 and defendants given an opportunity to answer.

Id. (bolded emphasis added).

In light of the above, (i) the default judgment, dated March 23, 2007, is vacated; (ii) plaintiff is given leave, within 20 days after service of a copy of this decision with notice and [*5]entry, to file the affidavit of service with the clerk nunc pro tunc, (iii) plaintiff shall provide Thenor with notice that such filing has taken place, and (iv) upon receiving such notice, Thenor shall have 30 days to answer or otherwise respond to the complaint in this action.[FN3]

Dated: October 8, 2013

ENTER:

______________________J.S.C. Footnotes

Footnote 1: Although Thenor's papers do not identify any particular provision of the CPLR under which he is seeking to vacate the default judgment, the court assumes for the purposes of this decision that the relevant sections are CPLR 317, 5015(a)(1) and 5015(a)(4).

Footnote 2: It is worth mentioning that plaintiff's failure to file the affidavit of service with the clerk of the court (see Thenor aff., ¶ 5) is not jurisdictional in nature. Instead, it is merely "a procedural irregularity that can be cured by order of the court allowing the filing nunc pro tunc." Bell v Bell, Kalnick, Klee & Green, 246 AD2d 442 (1st Dept 1998); Weininger v Sassower, 204 AD2d 715 (2d Dept 1994). However, for reasons that will become clear later in this decision, plaintiff's failure to file the affidavit has consequences beyond those attributed to it by defendant in his papers.

Footnote 3: In his papers, Thenor cites CPLR 3216 (want of prosecution) as an additional basis to dismiss this action. However, Thenor fails to offer any authority supporting such relief where a plaintiff has pursued and obtained a judgment, including an award after an inquest, although he or she has not executed on the judgment.