B.G. Lenders Serv., LLC v Senecal
Annotate this CaseDecided on December 26, 2017
Supreme Court, Warren County
B.G. Lenders Service, LLC and BRIAN GRANGER, Plaintiffs,
against
Jennifer Senecal, DAN SEYMOUR, LISA SEYMOUR and AMERICAN LENDERS OF GLENS FALLS, Defendants.
52080
McPhillips, Fitzgerald & Cullum LLP, Glens Falls (Eric C. Schwenker of counsel), for plaintiffs.
Jennifer Senecal, defendant pro se.
Robert J. Muller, J.
This action was commenced by the filing of a summons and verified complaint on March 24, 2009.[FN1] Counsel for plaintiffs then filed a request for judicial intervention on June 28, 2016 seeking to schedule a preliminary conference. By letter dated July 18, 2016, the Court scheduled the preliminary conference for August 12, 2016. At that time, only counsel for plaintiffs and defendant American Lenders of Glens Falls (hereinafter American Lenders) appeared. As a result, the Court issued an Order on November 21, 2016 whereby plaintiffs were granted a default judgment as against defendants Jennifer Senecal, Dan Seymour and Lisa Seymour (see Uniform Rules for Trial Courts [22 NYCRR] § 202.27 [a]). This Order was then entered on November 22, 2016.
An inquest was scheduled for December 12, 2016 and then adjourned to April 21, 2017 at the request of plaintiffs' counsel. At that time, only plaintiffs appeared to present proof. The Court then issued two separate Judgments on May 8, 2017, one against Senecal in the amount of $221,209.13 and another against the Seymours in the amount of $128,091.00. These Judgments were entered on May 9, 2017.
The Court subsequently received letters from Senecal dated June 14, 2017 and June 16, 2017, respectively. In these letters Senecal indicated that she was upset and confused when she received a copy of the Judgment entered against her, as she was never apprised of any Court dates. After [*2]reviewing these letters — both of which were sent on notice to counsel for plaintiffs — the Court engaged in a thorough review of its file and discovered several troubling issues. Perhaps most significantly, the Court discovered that plaintiff never filed any proof of service of the summons and verified complaint upon either Senecal or the Seymours. As a result, the Court issued a letter Order on June 23, 2017 finding that — because neither Senecal nor the Seymours had been served — it was without personal jurisdiction over them and the November 2016 Order and the May 2017 Judgments were all null and void (see Khanal v Sheldon, 55 AD3d 684, 686 [2008]; McMullen v Arnone, 79 AD2d 496, 499 [1981]). The Court further directed plaintiffs to cease and desist any and all efforts toward the enforcement and/or collection of the May 2017 Judgments. Presently before the Court is plaintiffs' motion for leave to reargue relative to this letter Order.
A motion for leave to reargue should be granted where "the court has overlooked significant facts or misapplied the law in its original decision" (Matter of Town of Poestenkill v New York State Dept. of Envtl. Conservation, 229 AD2d 650, 650 [1996]; see CPLR 2221 [d]; Matter of Ellsworth v Town of Malta, 16 AD3d 948, 949 [2005]).
Here, plaintiffs contend that the Court overlooked significant facts. Specifically, plaintiffs contend that Senecal and the Seymours were personally served with the summons and complaint and, as such, the Court acquired personal jurisdiction over them. In support of this contention, plaintiffs have submitted copies of the affidavits of service indicating that Senecal and the Seymours were personally served on April 1, 2009 (see CPLR 308 [1]). Plaintiffs have also submitted a copy of the answer served by Senecal on or about April 1, 2009, as well as a copy of the answer served by American Lender and the Seymours on or about April 29, 2009.[FN2]
Plaintiffs further contend that the Court misapplied the law, as CPLR 306-b no longer requires that affidavits of service be filed (see Leader v Maroney, Ponzini & Spencer, 276 AD2d 194, 197 [2000], affd 97 NY2d 95 [2001]).
Under the circumstances, plaintiffs' motion for leave to reargue is granted. Upon reargument, however, the Court adheres to its original determination — at least in part. Having now been presented — for the first time — with the affidavits of service and the answers served by Senecal and the Seymours, respectively, the Court finds that it has personal jurisdiction over these defendants. With that said, the Court adheres to its original determination insofar as it vacates the November 2016 Order and the May 2017 Judgments.
This action is rife with procedural errors and omissions. At the outset, the request for judicial intervention filed by counsel for plaintiffs failed to indicate that issue had been joined relative to Senecal and the Seymours and, further, failed to include addresses for these defendants. As such, the letter scheduling the August 12, 2016 preliminary conference was sent only to counsel for [*3]plaintiffs and counsel for American Lenders; neither Senecal nor the Seymours were ever apprised of the conference. The Court therefore erred in issuing a default judgment against Senecal and the Seymours under the Uniform Rules for Trial Courts (22 NYCRR) § 202.27 (a) based upon their failure to appear.[FN3] Unfortunately, these errors were never brought to the Court's attention by either counsel for plaintiffs or counsel for American Lenders.
The errors were then compounded by plaintiffs' apparent failure to serve a copy of the November 2016 Order on Senecal and the Seymours,[FN4] as well as the failure to advise either Senecal or the Seymours of the inquest. The Court scheduled the inquest by correspondence dated November 21, 2016, which was sent only to counsel for plaintiffs and counsel for American Lenders. Counsel for plaintiffs then sent correspondence on December 1, 2016 requesting an adjournment of the inquest, which correspondence was directed only to the Court. While the Court apprised counsel for American Lenders of this adjournment request, it did not apprise either Senecal or the Seymours. Plaintiff subsequently discontinued the action against American Lenders and the inquest was adjourned via email. Again, neither Senecal nor the Seymours were copied on the email exchange. While counsel for plaintiffs indicates that "[n]otice of the damages inquest was sent to . . . Senecal and [the Seymours] at their last known address," no proof of such notice has been submitted.
It must also be noted that when the Court requested addresses for Senecal and the Seymours — for inclusion in the May 2017 Judgments — counsel for plaintiffs provided the wrong address for Senecal. Specifically, an assistant in plaintiffs' counsel's office sent an email to the Court advising that Senecal's address was 9 Cedar Court in the Town of Queensbury, New York — as opposed to 93 Cedar Court. More troubling perhaps is that, while the original Judgment filed by the Court includes the incorrect address — 9 Cedar Court — the copy served on Senecal was altered so as to include the correct address — 93 Cedar Court.
"At any stage of an action . . . the [C]ourt may permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just" (CPLR 2001; see Matter of Lott v Goord, 296 AD2d 631, 631-632 [2002]). Here, the Court cannot sit idly by and permit the several errors and omissions to result in such substantial judgments against Senecal and the Seymours; to do so would be an extraordinary miscarriage of justice. These errors and omissions are therefore corrected by vacating the November 2016 Order and May 2017 Judgments and returning the case to its original procedural posture with the scheduling of a preliminary conference — on notice to all of the necessary parties.
Based upon the foregoing, plaintiffs motion for leave to reargue is granted and, upon reargument the Court finds that it has personal jurisdiction over Senecal and the Seymours but the [*4]November 2016 Order and the May 2017 Judgments must nonetheless be vacated in the interest of justice.
A preliminary conference is hereby scheduled for January 22, 2018 at 10:00 A.M. at the Warren County Courthouse in Lake George, New York.
Therefore, having considered the Affirmation of Eric C. Schwenker, Esq. with exhibits attached thereto, undated, submitted in support of the motion; and correspondence of Jennifer Senecal, undated, submitted in opposition to the motion; it is hereby
ORDERED that plaintiffs' motion for leave to reargue is granted; and it is further
ORDERED that, upon reargument, the Court finds that it has personal jurisdiction over Jennifer Senecal, Dan Seymour and Lisa Seymour; and it is further
ORDERED that the Court otherwise adheres to its original determination that the November 21, 2016 Order and the May 8, 2017 Judgments are null and void; and it is further
ORDERED that the parties shall appear for a preliminary conference on January 22, 2018 at 10:00 A.M. at the Warren County Courthouse in Lake George, New York.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated July 19, 2017 and the submissions enumerated above. Counsel for plaintiffs is hereby directed to obtain a filed copy of the Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513, with such service to be effectuated via regular mail on or before January 5, 2018.[FN5]
ENTER:
Dated: December 26, 2017
Lake George, New York
____________________________________
ROBERT J. MULLER, J.S.C. Footnotes
Footnote 1: Although not germane to the issues presently before the Court, the action alleges that defendants engaged in certain fraudulent conduct that resulted in damages to plaintiffs.
Footnote 2: At the time of commencement of this action, the Seymours owned and operated American Lenders. As such, they served an answer jointly with American Lenders. A consent to change attorney form was filed on May 18, 2012 indicating that Fitzgerald, Morris, Baker & Firth, P.C. was relieved as counsel and the Seymours and American Lenders would be proceeding pro se. A notice of appearance was then filed by Fitzgerald, Morris, Baker & Firth, P.C. on August 17, 2016 indicating that it was appearing on behalf of American Lenders only, and the action was then discontinued as against American Lenders by stipulation entered April 3, 2017. To that end, it is unclear what relationship the Seymours have to American Lenders at this time.
Footnote 3: Uniform Rules for Trial Courts (22 NYCRR) § 202.27 (a) provides as follows: "At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows: "(a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest."
Footnote 4: The record does not contain any proof of service relative to this Order.
Footnote 5: In an abundance of caution, the Court will also provide defendants with a copy of this Decision and Order so as to ensure that they are aware of the upcoming conference date.
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