The following papers read on this Order to Show Cause by defendant, Aristides Ferreras (“defendant”) to vacate a judgment entered against him. Papers Numbered Order to Show Cause — Affidavit 1 Affirmation in Opposition — Exhibits 2 Upon the foregoing papers, it is ordered that the application is determined as follows: This is an action for non-payment of a promissory note in connection with a lease agreement for a vehicle, executed by defendant on May 4, 2015. Plaintiff has alleged that in April 2017, defendant defaulted on the subject note. The record reflects that prior to defendant’s default, in January 2017, the vehicle was impounded due to unpaid parking violations. On February 3, 2017, plaintiff paid $1,231.00 to retrieve the vehicle from the impound. By letter dated February 3, 2017, a repossession notice was allegedly sent to defendants, and on April 18, 2017, the vehicle was sold for $1,200.00. Plaintiff avers that on June 22, 2017, defendant was notified of the sale and of the remaining balance of $3,507.10. On October 18, 2021, a default money judgment was entered by the Clerk of Queens County against defendants in the amount of $7,378.27. The court notes that the judgment amount consisted of $3,212.85 and interest in the amount of $3,581.37. An income execution prepared by plaintiff dated October 20, 2021 to garnish defendant’s wages was issued against defendant. However, the income execution, annexed to plaintiff’s opposition, is incomplete and does not meet the requirements, pursuant to CPLR 5231(g). Further, plaintiff fails to submit proof of service of the income execution upon the sheriff and defendant (see CPLR 5231 [d]; [e]). Defendant, pro se, moves by Order to Show Cause with Emergency Affidavit signed on October 26, 2021 by Justice Ulysses B. Leverett to vacate the judgment and enjoin plaintiff from garnishing or from continuing to garnish defendant’s wages. Plaintiff opposes. Pursuant to 22 NYCRR 202.27-b (a) (1), “[a]t the time of filing with the clerk the proof of service of the summons and complaint in an action arising from a consumer credit transaction, or at any time thereafter, the plaintiff shall submit to the clerk a stamped unsealed envelope addressed to the defendant together with a written notice, in both English and Spanish…” Pursuant to 22 NYCRR 202.27-b (a) (2), “[n]o default judgment based on defendant’s failure to answer shall be entered unless there has been compliance with this subdivision and at least 20 days have elapsed from the date of mailing by the clerk.” Plaintiff has not submitted proof of compliance with the additional notice requirement in obtaining a judgment against defendant. In light of the above, plaintiff is hereby enjoined from garnishing or from continuing to garnish defendant’s wages. Only if plaintiff has already served the income execution upon defendant’s employer, Marks Homecare Agency Inc., shall plaintiff personally serve it with a copy of this order within 20 days of entry. Plaintiff shall personally serve defendant with a copy of this order within 20 days of entry. Plaintiff shall e-file proof of service. Accordingly, defendant’s application to vacate the judgment, is granted and the action is dismissed. Dated: January 26, 2022
