Recitation, as required by CPLR 2219, of the papers considered on the review of this motion for summary judgment:Papers NumberedNotice of Motion and Annexed Affidavits 1Affidavit in Opposition 2DECISION AND ORDER Plaintiff, Ford Motor Credit Company (Ford Motor Credit), filed a notice of motion on July 19, 2017, pursuant to Civil Practice Law and Rules §3212, for an Order granting summary judgment against Patricia A Symonds-Powell (Symonds-Powell) in the amount of $18,612.53, plus costs and disbursements for breach of contract. Procedural HistoryPlaintiff, Ford Motor Credit, recovered a judgment on default against Defendant, Symonds-Powell, for $9,677.28 in the Superior Court of the State of California, Northwest District Van Nuys Court, County of Los Angeles (Block, Comm.), on May 20, 2005. Ford Motor Credit filed an application for renewal of judgment in the amount $18,612.53 in Los Angeles Superior Court on December 15, 2014.Nearly two years thereafter, in New York Civil Court, Kings County, Ford Motor Credit commenced this action by filing a summons and complaint seeking to enter judgment against Symonds-Powell as rendered by the California court. Symonds-Powell failed to appear in the Kings County action and Ford Motor obtained a default judgment, which was vacated by Judge Cenceria P. Edwards on May 31, 2017.DiscussionThe sole issue before this Court is whether the New York City Civil Court must recognize Ford Motor Credit’s default judgment obtained against Symonds-Powell in California under the Full Faith and Credit Clause (US Const, art IV, §1) pursuant to Article 54 of the CPLR.The Full Faith and Credit Clause requires “recognition of [a] foreign judgment as proof of the prior out-of-State litigation and gives it res judicata effect, thus avoiding relitigation of the issues in one State which have already been decided in another” (New Century Fin. Servs., Inc. v. Shaheen, 26 Misc3d 1212 [A] 1, 1 quoting Fleet Business Credit, LLC, v. Michael P. Costelloe, Inc., 856 NYS2d 436 [2d Dept 2008]).“Article 54 of the New York CPLR provides for an expedited means for enforcing a sister State judgment by filing a copy of the judgment with the County Clerk within the state” (New Century Fin. Servs., Inc. v. Shaheen, 26 Misc3d 1212 [A] at 1). However, CPLR 5401 limits the scope of a “foreign judgment” to any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, except one obtained by default in appearance, or by confession of judgment (CPLR 5401) since it is generally not regarded as a disposition on the merits (All Terrain Props., Inc. v. Hoy, 265 AD2d 87, 92 [1st Dept 2000]).Notwithstanding the limitations of CPLR 5401, “where the ‘foreign judgment’ is entered upon default a plaintiff may proceed against a defendant by plenary action” (CPLR 5406; Juliani v. Nahorai, 59 AD3d 300 [1st Dept 2009]), where “a default judgment of sister state can be accorded full faith and credit” (Progressive Intl. Co. v. Varun Cont., Ltd., 16 AD3d 476, 476 [2d Dept 2005]; Madjar v. Rosa, 83 AD3d 1011 [2d Dept 2011]).In support of its motion, Ford Motor Credit proffered, inter alia, an affidavit from its Account Services Representative, Melissa Veloz; a copy of the Exemplification, dated May 21, 2015, and the Default Judgment By Court,1 a copy of the Application For and Renewal of Judgment in the amount $18,612.53;2 a copy of the summons and complaint dated December 28, 2015.3Symonds-Powell, in opposition, raised the defense that she was never served in the California action.4 In an action to enforce the judgment of a sister state, where the defendant raises the issue of lack of personal jurisdiction, this Court “must look to the jurisdictional statutes of the forum in which the judgment was rendered as well as due process considerations” (Augusta Lbr. & Supply v. Sabbeth Corp., 101 AD2d 846, 846 [2d Dept 1984]).In this Court’s analysis of Ford Motor Credit, affirmations, affidavits, and documentary evidence submitted, the Court notes Ford Motor Credit’s failure to aver or submit evidence that the California judgment was not obtained by default in appearance or by a confession of judgment (CPLR 5402). Ford Motor Credit failed to provide an affidavit of service demonstrating Defendant was properly served in the underlying California action. Furthermore, the 2005 judgment states it was on default. Thus, this Court concludes the California judgment was entered on default due to Symonds-Powell’s non-appearance.Moreover, Ford Motor Credit’s affidavit of merit, relied on by this Court’s clerk, states that it recovered a final judgment against Symonds-Powell on December 15, 2014. Ford’s current motion claims the 2005 judgment was a final judgment. However, Ford’s own submissions indicate this is incorrect. The December 15th document is an application for renewal (Cal Code of Civ Procedure §683.130), which merely extends the time a judgment creditor has to enforce an existing judgment. Here, the judgment extended by the December 15, 2014 application for renewal is the default judgment granted to Ford in 2005. Had Ford’s affidavit included this information, the clerk would not have processed the judgment.While Ford Motor Credit correctly contends that the “procedure for relief from a default judgment generally is described in CPLR 317 and 5015(a)…. [and these] provisions require the making of a motion for relief in the original action” (Limitone Enterprises, Inc. v. Walker, 139 AD3d 951, 952 [2d Dept 2016]; see also James v. Shave, 62 NY2d 712 [1984]), meaning that Symonds-Powell must move the California court to vacate the default, it incorrectly identifies this action as a plenary action. Ford initiated this action by summons and complaint; plenary actions are initiated by motions for summary judgment in lieu of complaint (CPLR 5406). Judgment creditors may use this method to start a plenary action and enforce an out of state judgment (Juliani v. Nahorai, supra; CPLR 5406).Plaintiff’s motion for summary judgment is denied.ConclusionAccordingly, it isORDERED, that Plaintiff’s motion for summary judgment is denied.IT IS FURTHER ORDERED, that this action is dismissed without prejudice.This constitutes the Decision and Order of the Court.Dated: January 31, 2019.
