Capital One Natl. Assn. v Bank of Am., N.A.

[*1] Capital One Natl. Assn. v Bank of Am., N.A. 2014 NY Slip Op 50109(U) Decided on February 4, 2014 District Court Of Nassau County, First District Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2014
District Court of Nassau County, First District

Capital One National Association, Plaintiff(s)

against

Bank of America, N.A. and OLGA OBERTIS, DOMINIC OBERTIS, Defendant(s).



CV-028031-13



Forster & Garbus, LLP, Attorneys for Petitioner, 60 Motor Parkway, Commack, New York 11725, 631-393-9400;

Bank of America, N.A., Respondent, 20502 Linden Blvd., Saint Albans, New York 11412; Olga Obertis, Respondent, 2018 Belmont Avenue, Elmont, New York 11003; Dominic Obertis, Respondent, 2018 Belmont Avenue, Elmont, New York 11003

Scott Fairgrieve, J.

Action to enforce judgment granting relief to petitioner against judgment-debtor for satisfaction of default judgment in the sum of $4,408.82.

FACTS

On June 12, 2013, petitioner was awarded a money judgment against Dominic Obertis for recovery on default of a debt payment. On or around June 27, 2013, petitioner served Bank of America, N.A., respondent-garnishee, with an information subpoena and restraining notice for any accounts held solely or jointly by Mr. Obertis. Petitioner also served Bank of America, N.A. with an exemption notice and claim form to be completed by Mr. Obertis. On July 12, 2013, Bank of America, N.A. mailed Mr. Obertis the exemption notice and claim. Mr. Obertis never submitted the exemption [*2]claim.

Subsequent to service, Bank of America, N.A. advised petitioner that Mr. Obertis held a joint account in the names of Dominic and Olga Obertis with a balance of $1,690.48 and that the account was restrained in accordance with the subpoena. Bank of America, N.A. further advised that upon submission of the appropriate turn-over order, the account would be released to petitioner.

As required by CPLR §403 (c), petitioner served both Dominic and Olga Orbetis with a general notice of petition and petition with an appearance date of January 8, 2014. Affidavits of service submitted by the petitioner demonstrate personal service upon defendant Olga Obertis on December 30, 2013 and substituted service upon Dominic Obertis on December 30, 2013.

On January 6, 2014, copies of the general notice of petition and petition were mailed to Mr. Obertis as per CPLR § 403 (c). On January 7, 2014, petitioner filed the affidavits of service with the Court Clerk in Nassau County District Court.

ISSUE

Whether the debtor received sufficient notice of the appearance date in accordance with CPLR § 403 (c) service requirements for special proceedings?

DISCUSSION

A fundamental principle of due process is sufficient notice. Within the context of a special proceeding, service requirements are intended to satisfy due process by providing the debtor with reasonable notice of proceedings and the opportunity to respond.As per CPLR §403 (c), service in special proceedings must comply with those required in an action. (Siegel, NY Prac § 184 [2nd ed 2007]). Service in an action is governed by CPLR §308. The deliver-and-mail method outlined in CPLR §308(2) specifies that service is not complete until ten (10) days post-filing of proof of service (Siegel, NY Prac § 553 at 981 [5th ed 2011]).

The court in Long Island Jewish Medical Center v. Sovereign Bank 15 Misc 3d 1041, 838 N.Y.S.2d 413, 414 [NY Sup. Ct. 2007] has noted that service other than personal becomes problematic in special proceedings due to the difficulty in accurately affixing an appearance date. In Long Island Jewish Medical Center, the court dismissed the petitioner's request for an order to satisfy the judgment from a jointly held bank account for lack of sufficient service upon the joint holder. The joint account holder was served by deliver-and-mail as per CPLR §308 (2). The petitioner provided the court with the required affidavit of service on the petition appearance date, but failed to file the affidavit with the County Clerk thereby rendering service incomplete as per CPLR §308 (2).

In the case at bar, petitioner filed the Affidavit of Service for Dominic Obertis on January 7, 2014 with a petition appearance date scheduled for January 8, 2014. Under the facts herein, service upon Mr. Obertis is complete on January 18, 2014, therefore, the appearance date affixed by petitioner in the general notice of petition fails to comply with the CPLR provisions for substituted service.

To avoid the appearance issues encountered in cases involving substituted service, a petitioner may invoke an order to show cause remedy in a special proceeding. (Siegel, NY Prac § 553 at 981 [5th ed 2011]). In a situation in which [*3]personal service is difficult or unavailable, an order to show cause provides the petitioner with the opportunity for the judge to direct both method of service and time of return, including reducing the notice time frame. (Siegel, NY Prac § 553 at 981 [5th ed 2011]). If the petitioner herein elected to use an order to show cause prior to filing the general notice of petition, the dilemma of determining an appearance date in compliance with CPLR requirements would be eliminated as such date would be directed by the court. The entire issue of insufficient service would be mute.

CONCLUSION

The service upon the judgement-debtor, Dominic Obertis, is defective as per the above. This court is placing this matter on for further proceedings on March 14, 2014 at 9:30 a.m. in order to allow petitioner to serve the judgment-debtor in accordance with CPLR §403 (c).

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:February 4, 2014