New Century Fin. Servs., Inc. v Coakley

[*1] New Century Fin. Servs., Inc. v Coakley 2017 NY Slip Op 50661(U) Decided on May 22, 2017 Civil Court Of The City Of New York, Bronx County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2017
Civil Court of the City of New York, Bronx County

New Century Financial Services, Inc., Plaintiff,

against

Rebecca Coakley, Defendant.



CV 63627/2005/ BX



Attorneys for Plaintiff

By: CRAIG S. STILLER, Esq.

305 Broadway, 9th Floor

New York, New York 10007

REBECCA COAKLEY

Defendant Pro Se
Sabrina B. Kraus, J.

BACKGROUND

This action was commenced by NEW CENTURY FINANCIAL SERVICES, INC(Plaintiff) against REBECCA COAKLEY (Defendant) seeking $4,970.34 plus interest and costs, based on the allegation that Defendant failed to make payments due on a credit card issued by Plaintiff's predecessor in interest.

PROCEDURAL HISTORY

The summons and complaint are dated October 26, 2005.[FN1] The affidavit of service

provides that service was made on a person of suitable age and discretion at 525 East 143rd Street, alleged to be Defendant's residence, on December 19, 2005. Proof of service appears to have bene filed with the court on December 29, 2005.

From this point the case history set forth by Plaintiff in the moving papers, and the case history contained in the computer summary differ. Plaintiff asserts that Defendant never answered or appeared, and that in 2013 they obtained a default judgment against her based on her failure to appear. This statement of the history of the case does not appear to be accurate. A [*2]default judgment for failure to appear would not be entertained by the court 8 years after the service of the pleadings. Additionally, Plaintiff acknowledges that payments were received and served the motion papers for this motion on Defendant at a Middletown, NY address rather than the address served in the affidavit of service for the summons and complaint. This would indicate some activity between the parties other than an application for a default judgment.

The court's history indicates that on or about February 28, 2007, Defendant appeared and moved to vacate a default judgment and that said motion was granted pursuant to a stipulation on or about March 14, 2007.

The history further provides that the file was ordered from Archives on or about July 17, 2013, and that on or about July 19, 2013, Plaintiff applied for a judgment based on a default in the stipulation of settlement. The file was received from archives on August 23, 2013, and on that date, a default judgment was entered without any motion, against Defendant.

THE PENDING MOTION

Now Plaintiff moves for an order pursuant to CPLR § 5019(a) to amend the judgment entered. Plaintiff alleges that based on "an investigation conducted" by counsel's office, Defendant made and should have been credited for $2916.71 in payments. Plaintiff offers no details about what led to such an investigation years after the entry of the alleged default judgment.

CPLR § 5019(a) provides:

Validity and correction of judgment or order. A judgment or order shall not be stayed, impaired or affected by any mistake, defect or irregularity in the papers or procedures in the action not affecting a substantial right of a party. A trial or an appellate court may require the mistake, defect or irregularity to be cured.

CPLR 5019(a) allows correcting mistakes in judgments that are merely of a clerical nature. It's not authority for making substantive changes, which require a motion to vacate. The longer the delay in seeking an amendment, the more likely it will be—unless undisputable writings of some kind manifest everything—that what was intended will not be all that clear.

Where the alleged error is substantive, other than one that is clearly inconsistent with the intentions of the court and the parties as demonstrated by the record, relief should be obtained either through an appeal from the judgment, or, if grounds for vacatur exist, through a motion to vacate pursuant to CPLR 5015(a) (see Salamone v. Wincaf Props., 9 AD3d 127, 133—134, 777 N.Y.S.2d 37 [2004], lv. dismissed 4 NY3d 794, 795 N.Y.S.2d 168, 828 N.E.2d 84 [2005], abrogated on other grounds by Frank v. Meadowlakes Dev. Corp., 6 NY3d 687, 816 N.Y.S.2d 715, 849 N.E.2d 938 [2006] ).

Johnson v Societe Generale S.A.94 AD3rd 663, 664.

Here, a change in the allegation by Plaintiff as to the amount paid under the stipulation of settlement is a substantive change not subject to amendment pursuant to CPLR 5019(a).

Moreover, the clerk was without authority to enter a judgment against Defendantwithout a further court order after Defendant's default on the stipulation of settlement [HSBC Bank USA, National Association v. Wielgus 131 AD3d 510; Arrow Financial Services LLC v Benjamin 2017 NY Slip Op 27157; CPLR 3215(I)].

The reason that said judgments must be entered pursuant to a court order and not by the clerk is to prevent just such an error as occurred in the case at bar, where the amount to be entered is not a sum certain, but requires calculation including what was paid under the terms of [*3]the stipulation.

Based on the foregoing the motion is granted to the extent of vacating the underlying judgment as having been improperly entered, without prejudice to Plaintiff's right to seek such other relief as may be appropriate, upon a motion to the court which provides an accurate history of the action along with relevant and supporting documentation.

This constitutes the decision and order of the court.

Dated: New York, New York

May 22, 2017

___________________

Hon. Sabrina B. Kraus, JCC

PRESSLER and PRESSLER, LLP Footnotes

Footnote 1:At the time the motion was submitted, the file was not available to the court. The court was given only Plaintiff's motion papers and a case summary printout from the court computer.