I. The following papers were read on this order to show cause (“OSC”) by pro se defendant seeking an order to vacate a default judgement and to restore the case to calendar pursuant to CPLR 5015(a): Papers Numbered Defendant’s OSC dated January 13, 2020 with supporting affidavit (“OSC Affidavit”) 1 Plaintiff’s opposition (“Opposition”) dated January 23, 2020 to Defendant’s OSC, with supporting exhibits and affidavit of mailing 2 Defendant’s undated and unsigned response (“Response”) to the Opposition 3 II. Defendant wrote a check in the amount of $8,500 to a third party (“Payee”) on July 30, 2016. Payee went to Plaintiff, a check cashing business, on the same day and cashed the check. Plaintiff paid the Payee on July 30, 2016 “on [D]efendant’s behalf” in the amount of “$8,500 minus fees,” and “presented the check to [D]efendant’s bank…The check was presented two times to be paid and the check was dishonored both times as there was insufficient funds in the account…Plaintiff ha[d] made several attempts to obtain compensation, however the remaining balance [was] still outstanding.” (Opp at 2-3). Plaintiff filed its summons and complaint with the court on April 16, 2018 and a default judgement (“Default Judgement”) was entered on November 4, 2019 in favor of Plaintiff in the amount of $5,369.30, $4,030 of which was the amount claimed and demanded in Plaintiff’s complaint. According to court’s case summary, Defendant filed an order to show cause (“First OSC”) on December 19, 2019. Judge John C. Katsanos signed the First OSC and adjourned the case to January 13, 2020 for a hearing. On January 13, 2020, Defendant failed to appear and Judge Katsanos denied the First OSC. On January 13, 2020, Defendant filed the OSC stating that 1) she was not served with the summons and complaint, 2) she was sick due to the flu, 3) she had “proof [that] the issue was settled”, and 4) she missed the “roll call” on January 13, 2020. (OSC Aff). Judge Katsanos signed the OSC and adjourned the matter to January 24, 2020, Part 34 for a hearing. On January 24, 2020, Judge Laurentina McKetney Butler further adjourned the matter to March 12, 2020 for a hearing. On March 12, 2020, a judge took Papers 1-3 referred to hereinabove as submission, and this matter is now before this Court during the coronavirus pandemic. Plaintiff argued 1) that its “Affidavit of Service…indicate[d] the Defendant was served pursuant to CPLR 308(2) by delivering the summons within the state to a person of suitable age and discretion, at the usual place…of the Defendant and by mailing the summons to the Defendant’s last known residence, [XXX], Flushing, NY 11358,” and 2) that Defendant “fail[ed] to set forth potentially meritorious defense” because she did not have “proof from her bank that the check [was] cashed.” (Opp at 2-3). III. It is well established in the State of New York that in order to vacate a default judgement, the movant must “demonstrate both a reasonable excuse for the default and a meritorious defense” (Newell v Hirsch, 65 AD3d 1108 (2d Dept 2009); Katz v. Marra, 74 AD3d 888, 890 [2d Dept 2010]). Excusable Default CPLR 5015 (a) states that a default judgement may be vacated if there is “1. excusable default, if…motion [to vacate] is made within one year after service of a copy of the judgment…2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404…or 4. lack of jurisdiction to render the judgement or order…” Here, the OSC was made within one year of the Default Judgement. Defendant argued that she “was sick and ha[d] the flu” and she “did not receive the court papers” (OSC Aff at 2). Plaintiff counterargued that “[d]efendant’s bald assertion that she was never properly served and had no knowledge that she was being sued, [was] insufficient to rebut the presumption of proper service created by the process server’s affidavit” (Opp at 2). To respond, Defendant argued that she had “moved from the location where papers were being served” and she “was not personally served nor informed” (Response at 2). Based on the arguments from both parties before this Court, this Court finds that Defendant would have had an excusable default pursuant to CPLR 5015(a) (1) if she were to provide concrete evidence in her motion papers that she has indeed moved when the summons and complaint were served in May 2018 at her residence located at [XXX], Flushing, NY 11358, which is the same address indicated in the returned check she wrote to the Payee in June, 2016, or if the Response were signed and sworn to. It is noted that Defendant’s Response was undated, unsigned and unsworn to, although the OSC Affidavit was dated, signed and sworn to. Meritorious Defense Defendant argued in her OSC Affidavit that she had “proof the issue was settled” and that she had a “recorded message…the debt was taken care of” (OSC Aff at 2). Plaintiff counterargued that “[i]f [D]efendant had proof from her bank that the check cashed, case closed[; however,] [D]efendant [had] not presented such proof…” and that “Plaintiff made several attempts to obtain compensation, however the remaining balance [was] still outstanding” (Opp at 3). To respond, Defendant argued that she had the recorded “words” from the “owner of Sunrise Check Cashing” on her cell phone stating “it [was] Charlie, Bobby’s friend…the check cashing guy. Just to let you know Alvin took care of everything that needed to be taken care of…” (Response at 3). Here, Defendant did not deny that she wrote a bad check; however, she claimed that the debt had been taken care of. On the other hand, Plaintiff argued that there was still outstanding debt remaining. This Court has thoroughly reviewed the motion papers with all supporting documents from both parties and found there is a discrepancy in terms of the outstanding debt. It is noted that the original bad check written by the Defendant was in the amount of $8,500; however, Plaintiff demanded $4,030 in its summons and complaint upon which Default Judgement was entered. Based on the discrepancy in the amounts of the debt, it appears that a certain portion of the debt had been collected, if not all. However, how much of the debt has been satisfied remains to be unsolved. Pursuant to Plaintiff, the remaining debt was $4,030 plus interest and fees. However, Plaintiff fails to provide this Court with detailed evidence as to how much debt has been collected and how Plaintiff came up with the outstanding debt in the amount of $4,030. On the other hand, Defendant argued that “the issue was settled”; however, she fails to prove that the entire debt has been taken care of. Based on the above analysis, this Court finds that Defendant has a potential meritorious defense pursuant to CPLR 5015(a) and should be given an opportunity to introduce evidence that a certain portion of the debt, if not all, has been taken care of, and Plaintiff shall also be given the opportunity to present evidence as to how much debt remains to be outstanding. Question of Fact New York courts traditionally favor resolving matters on their merits (Allen v Preston, 123 AD2d 303, 304 [2d Dept 1986], Gerdes v. Canales, 74 AD3d 1017, 1017 [2d Dept 2010]), although the decision to vacate a default judgement is often left to the sound discretion of the court (U.S. Bank N.A. v. Slavinski, 78 AD3d 1167, 1168 [2d Dept 2010]). Here, in the instant matter, this Court is not convinced that the remaining balance of the debt is $4,030, zero, or any amount in between without supporting evidence from the respective party when the original bad check was in the amount of $8,500. There is a question of fact that must be answered. This Court finds that it is in the interest of justice to vacate the Default Judgement and set this matter for hearing and trial, so that this matter may be resolved on its merits (Long Is. Trading Corp. v Tuthill, 243 AD 617, 617 [2d Dept 1935]). IV. Accordingly, it is ORDERED that Defendant’s order to show cause is granted, and it is further ORDERED that the Default Judgement is vacated, and it is further ORDERED that within 20 days of the date of this order, Defendant shall serve and file an answer to Plaintiff’s complaint. This constitutes the DECISION and ORDER of the Court. Dated: July 20, 2020
