Cullen v Moschetta

[*1] Cullen v Moschetta 2018 NY Slip Op 51463(U) Decided on October 17, 2018 Supreme Court, Suffolk County Quinlan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2018
Supreme Court, Suffolk County

Terry Cullen, Plaintiff, Ron Moschetta,

against

LONG ISLAND SALVAGE BUY AND SELL GROUP INC., and STARVEST GROUP INC., Defendant(s).



33608/2012



GOLD BENES LLP

Attorneys for Plaintiff

1666 Newbridge Road, Second Floor

Bellmore, NY 11710

GRAHAM & BORGESE, LLP

Attorney for Defendant Ron Moschetta

1695 Empire Blvd., Suite 140

Webster, NY 14580
Robert F. Quinlan, J.

Upon the following papers numbered 1 to 65 read on this order to show cause for an order vacating the order striking his answer, the decision and order after inquest, and vacating the judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 - 50; Answering Affidavits and supporting papers 51 - 65 ; Other (Memorandum of Law in Opposition; and Memorandum of Law in Reply and supporting papers); it is,

ORDERED that the motion by defendant Ron Moschetta for an order vacating the December 17, 2013 order striking his answer, vacating the December 15, 2014 decision and order after inquest granting default judgment, vacating the judgment after inquest entered December 19, 2014, and permitting him to defend this action on the merits, is denied.

In this action plaintiff Terry Cullen ("plaintiff") alleged that on or about February 2, 2012 he and defendants entered into an agreement whereby defendants agreed to purchase shares of Juniper Group Inc. common stock from plaintiff for the sum of $25,000.00 on or before April 30, 2012. A check signed by defendant Ron Moschetta ("defendant") was issued to plaintiff on or about May 1, 2012 in that amount. Plaintiff deposited the check and it was returned for insufficient funds. Plaintiff commenced this action by filing the summons and complaint on October 29, 2012. Service on defendant was effectuated November 17, 2012 by substitute service on Wendy "Doe," identified in the affidavit of service as the receptionist at defendant's actual place of business located at 152 E. Park Avenue, Long Beach, New York. Defendant, appearing pro se, served and filed an unverified answer dated November 19, 2012. Defendant did not include his address in the answer filed with the court.

PROCEDURAL HISTORY

Plaintiff's first motion for summary judgment (#001) was denied by order dated September 23, 2013 (Mayer, J.). Pursuant to that order a preliminary conference was scheduled for October 23, 2013. Upon defendant's failure to appear at the October 23rd conference Justice Mayer issued an order on October 29, 2013, noted defendant's failure to appear, gave defendant another opportunity to appear for conference on December 17, 2013, and directed plaintiff's counsel serve a copy of the order upon defendant via first class and certified mail (return receipt requested). Counsel for plaintiff mailed the October 29, 2013 order pursuant to the court's directive. At the December 17, 2013 conference defendant again failed to appear, the court issued an order striking defendant's answer, and directed plaintiff's counsel serve a copy of the order upon defendant via first class mail. Plaintiff's counsel mailed the December 17, 2013 order pursuant to the court's directive. Plaintiff's counsel mailed both the October 29, 2013 and December 17, 2013 orders to defendant at the business address where he was served.

Plaintiff then moved for judgment against defendant for a sum certain pursuant to the court's December 17, 2013 order striking defendant's answer and for default judgment against Long Island Salvage Buy and Sell Group Inc. (#002). By order dated June 4, 2014 the court granted judgment as to liability only, set the matter for inquest on September 5, 2014, and directed plaintiff's counsel serve a copy of the order by first class mail and certified mail, return receipt requested. Plaintiff's counsel mailed the June 4, 2014 order by first class and certified mail pursuant to the court's directive. Then, for reasons unknown to this court, in addition to serving defendant at the Long Beach business address, plaintiff also served the June 4, 2014 order on defendant at his home address, 990 Gerry Avenue, Lido Beach, New York, by regular and certified mail return receipt requested.

On September 5, 2014, the date of the scheduled inquest, Justice Mayer issued an order recusing himself from presiding over this action, and the action was randomly reassigned to the inventory of Acting Justice of the Supreme Court Andrew G. Tarantino, Jr..

By order dated September 25, 2014 (Tarantino, J.) plaintiff was directed to submit proof of damages and a proposed judgment and serve a copy of the order by first class mail and certified mail upon defendant. Once again plaintiff's counsel mailed the September 25, 2014 order pursuant to the [*2]court's directive, to both the Long Beach and Lido Beach addresses. Plaintiff then served a notice of inquest (#003) with supporting documents on defendant at both the Long Beach and Lido Beach addresses, by USPS priority mail, on October 17, 2018. A review of the court's file shows that annexed to the affidavit of service are the USPS Tracking printouts confirming delivery of the notice of inquest on defendant at both the Long Beach and Lido Beach addresses on October 20, 2014. The court granted plaintiff judgment against defendants in the sum of $25,000.00, with interest by decision and order after inquest dated December 15, 2014. Judgment after inquest was entered by the Suffolk County Clerk on December 19, 2014.

Defendant now moves by order to show cause signed by this court on May 21, 2018, pursuant to CPLR 5015(a) to vacate the December 17, 2013 order striking his answer, the December 15, 2014 decision and order after inquest granting default judgment, and the judgment after inquest entered December 19, 2014, in the interest of justice or alternatively pursuant to CPLR 5015(a)(3) on the basis of fraud. In support defendant submits his affidavit, the affirmation of counsel and supporting exhibits including inter alia the pleadings, affidavit of service, plaintiff's motion for summary judgment (001), motion striking defendant's answer (002) and the orders with affidavits of service. Defendant argues that although he admits to receiving the summons and complaint which were served at the Long Beach business address on November 17, 2012, that was no longer his place of business. Thereafter, and "with the intention to fully and completely litigate this matter" defendant states he filed an answer, which does not assert a jurisdictional defense or include a new address, and now claims to have never received any information regarding this action from the court or from plaintiff's counsel, until some unspecified date when he purportedly received a text from plaintiff informing him of the default judgment. Defendant further alleges that although he wanted to move to vacate earlier, he was advised by bankruptcy counsel not to do so, though no specific time frame for this advice is given by defendant. Then, in the summer of 2016, he attempted to file an order to show cause on his own behalf in Nassau County, and was told it was the wrong venue. He attempted to re-file in Suffolk County where court records indicate the papers were rejected on August 12, 2016.[FN1] Defendant made no further attempt to vacate the court's orders or judgment until he appeared before this court on May 21, 2018.

Plaintiff opposes the application arguing he is prejudiced by the long delay, defendant never stated that the Long Beach address was incorrect, nor did he provide plaintiff with a new address. Further, none of the many orders and motions which plaintiff's counsel mailed to defendant, either at the Long Beach business address or the Lido Beach home address, were returned to plaintiff's counsel as undeliverable. Plaintiff further states that defendant's excuse that he did not move to vacate sooner because of bankruptcy is without merit and annexes a copy of the PACER printout from defendant's bankruptcy (USBC EDNY Petition #8-12-71257) which indicates the bankruptcy petition was filed March 5, 2012 and the bankruptcy proceeding was terminated September 17, 2012, years before [*3]judgment was entered in this action.[FN2] Defendant submits a reply.

At the outset the court notes that defendant's counsel, in his memorandum of law in support, states that court minutes do not indicate that a notice of entry or affidavit of service of the December 15, 2014 decision and order after inquest was ever served by plaintiff. This statement resulted in plaintiff's prior counsel, now retired, submitting an affirmation in opposition to defendant's order to show cause setting forth his practices and procedures for mailing the orders and indicating that he personally served the December 15, 2014 decision and order after inquest. While the court minutes do not reflect service of the December 15, 2014 order, this court has reviewed the actual court file which includes plaintiff's original order with notice of entry of the December 15, 2014 decision and order after inquest. Plaintiff's order with notice of entry is dated December 23, 2014, and annexed thereto is an affidavit of service dated December 23, 2014 indicating that plaintiff's counsel did, in fact, serve the December 15, 2014 order with notice of entry on defendant at both the Long Beach and Lido Beach addresses, by first class mail and certified mail return receipt requested. Although initially not indexed, the original order with notice of entry, with the annexed affidavit of service, is stamped "FILED" by the Suffolk County Clerk on December 30, 2014, and the Clerk's minutes have been updated accordingly.

VACATUR IN THE INTEREST OF JUSTICE

The court first addresses the fact that pursuant to CPLR 2221(a) and 5015 motions to vacate an order or to renew and/or reargue a motion are to be made to the judge who issued the order. In this case both Justice Mayer and Acting Justice Tarantino have retired from the bench, and in the first instance Justice Mayer had recused himself. Therefore, both are "unable" to hear this motion, and this court having signed the order to show cause must decide this motion by default, and by the long held principle of "he/she who last touched it, gets it."

In addition to those grounds enumerated in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d 62 [2003]; Katz v Marra, 74 AD3d 888 [2d Dept 2010]). This discretion is reserved for unique or unusual circumstances that warrant such action (Katz v. Marra, supra; cf. Wade v Village of Whitehall, 46 AD3d 1302 [2d Dept 2007]; Soggs v Crocco, 247 AD2d 887 [4th Dept 1998]). A court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through fraud, mistake, inadvertence, surprise or excusable neglect (see Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 [1984]; Wells Fargo Bank Minn., N.A. v Coletta, 153 AD3d 757 [2017]). Here defendant argues that the address where he was served was no longer his business address at the time of service, yet he offers no proof of that or of a new business location. He submits an answer in which he never raises the issue of service or that the address at which he was served was inaccurate. In his answer he fails to include any address for himself, thereby implying to the court and other parties, that the address at which he was served was his address. Defendant further argues that after filing his answer he never received any information regarding this action. The court finds defendant's conclusory, self-serving arguments without merit. His action, or [*4]inaction, in failing to provide an address with his answer borders on misrepresentation to the parties and the court. Further, the proof submitted indicates that beginning in June of 2014 plaintiff served defendant with the various court orders and notices at his home address in Lido Beach in addition to the business address. Defendant admits the Lido Beach address is his home yet argues that the signature on a return receipt postcard does not match the signature of anyone in his home, other than his bald statement, he offers no proof in admissible form from others who resided at the house at the time challenging the signature.

By failing to raise service as a jurisdictional defense in his answer or in a timely motion to dismiss defendant has waived that claim (CPLR 3211[a][8]; CPLR 3211[e]; see American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d 1180 [2d Dept 2017]]. Therefore the claim of improper service of the summons and complaint cannot form a basis for defendant's motion to vacate the subsequent orders in the interest of justice.

Proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee (see Viviane Etienne Med. Care, P.C. v Country—Wide Ins. Co., 114 AD3d 33 [2d Dept 2013], aff'd. 25 NY3d 498 [2015]; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693 [2d Dept 2016]). A properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption (Kihl v. Pfeffer, 94 NY2d 118 [1999]; Matter of Rodriguez v Wing, 251 AD2d 335 (2d Dept 1998]; Facey v Heyward, 244 AD2d 452 [2d Dept 1997]; Udell v Alcamo Supply & Contracting Corp., 275 AD2d 453 [2d Dept 2000]). Here, the affidavits of service on defendant, at both his alleged former business address, as well as his confirmed home address, created a rebuttable presumption that the many mailings were received by defendant. His bald denial of receipt of those mailings, when faced with the proofs of mailing and the affirmation of plaintiff's counsel stating that none of the mail was returned to him as undeliverable, is insufficient. The circumstances presented are not unique or unusual and do not warrant the invocation of a court's inherent power to vacate an order in the interests of substantial justice and the court declines to do so (see Kleynerman v MJGC Home Care, 153 AD3d 1246 [2d Dept 2017]; Cox v Marshall, 161 AD3d 1140 [2d Dept 2018]).

VACATUR PURSUANT TO CPLR 5015(a)(3)

Where a party seeks to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud, the party must establish both a reasonable excuse for the default and a potentially meritorious defense (see McNamara v. McNamara, 144 AD3d 1112 [2d Dept 2016]; U.S. Bank N.A. v Galloway, 150 AD3d 1174 [2d Dept 2017]). Where defendant fails to establish a reasonable cause for the default, the court is not to consider whether defendant provided proof of a meritorious defense (see US Bank, NA v. Galloway, supra). Here defendant, as set forth above, failed to offer a reasonable excuse for his default, nor for his delay in moving to vacate 4 ½ years after the first order and 3 ½ years after the order after inquest, so the court need not determine whether he had a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v Karlis, 138 AD3d 915 [2d Dept 2016]; McNamara v McNamara, supra.

Notwithstanding the foregoing even if defendant had established a reasonable excuse for his default, defendant failed to establish upon the proof submitted that plaintiff engaged in any fraud to warrant vacatur. Defendant's conclusory allegations of fraud are insufficient to warrant [*5]the court ordering vacatur pursuant to CPLR 5015 (a) (3) (see Summitbridge Credit Invs., LLC v Wallace, 128 AD3d 676 [2d Dept 2015]; Terekhina v Terekhin, 155 AD3d 750 [2d Dept 2017]).

This Court has considered defendant's remaining contentions and finds them to be without merit.

Accordingly defendant's application is denied.

This constitutes the Order and decision of the Court.

Dated: October 17, 2018

_______________________________________

Hon. Robert F. Quinlan, J.S.C. Footnotes

Footnote 1:In his 2016 order to show cause defendant attempted to move simultaneously to vacate his default in this action and the action known as South Seas v Starinvest, et al., Index No. 10309/2014, by simply combining the captions and applying his arguments to vacate his default in both actions. Although South Seas v Starinvest involves some of the same parties the two actions were never consolidated. That filing was received by the clerk in Suffolk County on August 12, 2016, rejected (likely due to the fact that the two actions had not been consolidated) and placed in the court file for this action. Then, on May 21, 2018, the same day defendant made the present application to vacate his default in this action, he simultaneously filed an order to show cause to vacate his default in South Seas v Starinvest. Both applications were assigned to this part and defendant makes many of the same unavailing arguments in each.

Footnote 2:Defendant attempts to explain away this inconsistency in his reply affidavit by alleging his statements regarding the bankruptcy were mischaracterized by plaintiff's counsel and were meant to refer to his "2015 Bankruptcy atttempts" (emphasis supplied) rather than his actual 2012 bankruptcy filing. Defendant offers no proof of any attempted filings in support of this argument and the court finds it to be without merit.