Diamond Fin. Co. v. Sutton

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             1 DECISION AND ORDER Procedural Posture¹ 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, 2014² involving a motor vehicle finance transaction³.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.⁴ 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.”⁵ The Defendant also entered a general denial to answer the allegations filed in the complaint.⁶ The parties appeared virtually on June 1, 2020 after being calendared on the Kings County Civil Court Emergency Part Calendar.⁷ After oral argument, Plaintiff’s request to submit its response to 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”)⁸ and the process server’s Affidavit of Suitable Service annexed to its response.⁹ 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”).¹⁰ Plaintiff notes that throughout their relationship, Defendant used 3216 Cortelyou Road as his home address,¹¹ 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, 2020,¹² 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 would be a necessary party for a claim under the New York State Lemon Law¹³. 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 N.Y.2d 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 A.D.3d (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 A.D.3d 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 A.D. 2d 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, 2020¹⁴ 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.