Diamond Fin. Co., Inc. v Sutton
Annotate this CaseDecided on October 5, 2020
Civil Court of the City of New York, Kings County
Diamond Finance Co., Inc., Plaintiff,
against
Kareem C. Sutton, Defendant.
CV-054746-14 KI
For the Plaintiff is:
Steven M. Feinberg, Esq.
The Law Offices of Steven M, Feinberg, Esq.
590 Sunrise Highway
Baldwin, New York 11510
516-997-9797
Email: smfesqllc@smflawfirm.com For the Defendant is:
Kareem Sutton, self-represented
Patria Frias-Colon, J.
Recitation, as required by Civil Procedure Law and Rules (CPLR) §5015(a)(1), of the papers considered on the review of this motion to vacate default judgment.
Papers/Numbered:
Order to Show Cause 1
Plaintiff's Affirmation in Opposition 2
Defendant's Reply in Opposition 3
Plaintiffs Sur-reply 4
Procedural Posture [FN1]
By Order to Show Cause (OSC) dated May 21, 2020, Defendant moves to vacate the default judgment entered against him on or about September 19, 2014 [FN2] involving a motor vehicle finance transaction [FN3] .Defendant alleges his first notification of this action against him was when his employer's Human Resources Department called him and informed Defendant of Plaintiff's notice to garnish his paycheck.[FN4] Defendant's affidavit asserts he needs the money to "feed his family, and to prepare for a newborn" and that he "cannot support his family."[FN5] The Defendant also entered a general denial to answer the allegations filed in the complaint.[FN6] The parties appeared virtually on June 1, 2020 after being calendared on the Kings County Civil Court Emergency Part Calendar.[FN7] After oral argument, Plaintiff's request to submit its response to [*2]Defendant's OSC was granted and the Court established the following response schedule: Plaintiff's Response due by close of business June 12, 2020, Defendant's Reply due by close of business July 13, 2020. This OSC and subsequent responses were fully submitted following receipt of Plaintiff's Response, Defendant's Reply and Plaintiff's Sur-reply submitted by the July 13, 2020 deadline.
In its response, Plaintiff argues that the Defendant was in fact served the Summons and Verified Complaint and that Defendant's defense is not meritorious as contemplated by CPLR §5015(a)(4). In support of its contention that Defendant was in fact properly served in this action, Plaintiff relies on its Diamond Finance Company, Retail Installment Contract and Security Agreement ("Finance Contract")[FN8] and the process server's Affidavit of Suitable Service annexed to its response.[FN9] Plaintiff's Affidavit of Suitable Service alleges that the Defendant was served by delivering a copy of the Summons and Verified Complaint along with the Finance Contract to "JOHN DOE, TENANT, a person of suitable age and discretion" at the Defendant's home on 3216 Cortelyou, Apt 2-R, Brooklyn, New York 11226 ("3216 Cortelyou Road").[FN10] Plaintiff notes that throughout their relationship, Defendant used 3216 Cortelyou Road as his home address,[FN11] notably when the Defendant entered into the Financial Contract with Plaintiff, then on a New York State Motor Vehicle Police Accident Report dated April 17, 2020,[FN12] and also on the instant OSC. However, the affidavit of service is missing the date that service was effectuated on TENANT JOHN DOE .
In his reply, the Defendant asserts that the automobile he purchased was a "lemon." Defendant listed a number of automobile repair facilities that serviced the automobile but did not explicitly state any problems with the automobile and did not provide any automobile repair receipts for the Court to consider. Plaintiff's sur-reply points out that Defendant made a blanket assertion that the car was a lemon without any additional support and the automobile dealership [*3]would be a necessary party for a claim under the New York State Lemon Law [FN13] .
Discussion:
A defendant seeking to vacate a default in answering or appearing upon the grounds of excusable default pursuant to CPLR§ 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action. Bethpage Fed. Credit Union v. Grant, 115 N.Y.S.3d 410, 413 (2d Dep't 2019) citing Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 141 (1986). The Court is required to resolve questions of jurisdiction before determining whether it is appropriate to vacate the default judgment. Deutsche Bank Natl. Trust Co. v. Saketos, 72 N.Y.S.3d 167, 169 (2d Dep't 2018) citing Candelas v. Flores, 112 AD3d (2d Dep't 2013). Generally, an affidavit of a process server constitutes prima facie proof of proper service. Id. citing US Bank N.A. v. Ramos, 153 AD3d 882, 884, 60 N.Y.S.3d 345 (2d Dep't 2017). The burden of proving jurisdiction is on the party asserting it and, when challenged, that party must sustain such burden by a preponderance of credible evidence. OCI Mortg. Corp. v. Omar, 232 AD2d 462 (2d Dep't 1996). An affidavit of service is not conclusive evidence of service once there is a sworn denial of receipt. Id. citing Empire Natl. Bank v. Judas Construction, 61 AD2d 789 (2d Dep't 1978). Within Defendant's Order to Show Cause, Defendant proffers a sworn statement denying receipt of any notice of the action pending against from the Plaintiff. Furthermore, the affidavit of Plaintiff's process server is missing the date when substituted service was made on JOHN DOE, TENANT thus raising factual issues that warrant a Traverse hearing. Wachovia Bank, Nat. Ass'n v. Greenberg, 138 A.D. 984 (2d Dep't 2016). At this time the Court's examination of the Defendant's Order to Show cause does not extend beyond whether the Defendant was properly served to establish the Court's jurisdiction over him.
Conclusion:
Accordingly, Defendant's Order to Show Cause is GRANTED to the extent that this matter is restored to the calendar and scheduled for a Traverse hearing on October 17, 2020 [FN14] at 11 a.m. to be scheduled on SKYPE for Business.
The judgment is stayed pending further Order of this Court.
This constitutes the Decision and Order of the Court.
Date: October 5, 2020
Brooklyn, NY
_____________________________
PATRIA FRIAS-COLÓN
Judge, Civil Court, Kings County Footnotes
Footnote 1:This decision was drafted with assistance from law student interns Inioluwa Femi-Fatukasi and Anna Ramirez during their 2020 Summer Internship.
Footnote 2:Defendant's OSC, Index # CV—54746-14, dated May 21, 2020.
Footnote 3:It is alleged that on or about November 3, 2012, Defendant financed a 2003 BMW X5, (VIN# 54XFB33543LH45268) through Plaintiff in the amount of $9,941.10.. The loan repayment was to start December 5, 2012 wherein the contract required Defendant to pay $320.00 per month for 48 months at 23.25% interest.
Footnote 4:Id.
Footnote 5:Id.
Footnote 6:Defendant's Answer in Person and Verification, Index # CV—54746-14, dated May 21, 2020.
Footnote 7:The Defendant's OSC was heard on the Kings County Civil Court Emergency Part Calendar, which was created to address emergency applications during the COVID-19 pandemic. For this appearance, Plaintiff's attorney and the Defendant appeared by telephone via Skype for Business.
Footnote 8: Plaintiff's Response, Index # CV-54746-14, Exhibit A (Finance Agreement dated November 3, 2012).
Footnote 9:Plaintiff's Response, Index # CV-54746-14, Exhibit F (Notarized Affidavit of Suitable Service signed by Ricardo Curo dated October 17, 2014)..
Footnote 10:NY CPLR 308 (2).
Footnote 11:Plaintiff also admits it became aware Defendant had multiple addresses, including: 246 East 26th Street, 2nd Floor, Brooklyn, New York 11226 ("246 E. 26th Street") and 228 East 94th Street, Apt F, Brooklyn, New York 11212 ("228 E. 94th Street"). Plaintiff alleges it mailed the Defendant a letter notifying the Defendant about the judgment and demanding payment on April 3, 2015 to 3216 Cortelyou Road, on June 27, 2018 to 3216 Cortelyou Road and 228 E. 94th Street, and on December 26, 2019 to 228 E. 94th Street.
Footnote 12:Plaintiff's Response, Index # CV-54746-14, Exhibit C (New York State Department of Motor Vehicles - Police Accident Report, dated April 17, 2014).
Footnote 13: New York Consolidated Laws Service, General Business Law Article 11a,§ 198-b entitled the Sale or Lease of Used Motor Vehicles.
Footnote 14:This matter was heard as previously scheduled on September 17, 2020 at 2:30 on the Kings County Civil Court Special 1 calendar. Plaintiff's attorney and the Defendant appeared by Skype for Business. Plaintiff's adjournment request was granted because Plaintiff filed for bankruptcy and the fees related to securing the process server's testimony and the Plaintiff's attorney's appearance were awaiting approval from the bankruptcy trustee. Over Defendant's objection, the traverse hearing was adjourned to October 15, 2020 at 11:00 am, a date confirmed that all parties were available.
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