U.S. Equities Corp. v. Cavadias

Recitation as Required by CPLR §2219(a): The following papers were read on this Motion to Vacate and Dismiss: Papers Numbered Defendant’s Order to Show Cause, Affidavit in Support, and Exhibits         1 Plaintiffs Affidavit and Affirmation in Opposition     2 Defendant’s Reply Affirmation in Support 3 Defendant’s Surreply Affirmation in Support           4 Defendant moves, by order to show cause, to vacate the judgment and dismiss this action outright pursuant to CPLR 3211(a)(8) and 5015. In the alternative to dismissal, defendant seeks leave to interpose an answer and counterclaims.¹ Plaintiff opposes and, for the reasons stated herein, the Court will hold a traverse hearing in this action. At the outset, the Court will address a number of issues and related applications that have arisen in the course of this motion thus far. Plaintiff has made an application to strike defendant’s reply papers in this motion, alleging that defendant’s reply papers were unauthorized, offered new materials and issues in reply, and included inflammatory and unnecessary accusations and materials. Defendant in turn has made an application to strike plaintiffs surreply papers on the ground that plaintiff filed said papers without prior leave of the Court. The parties’ applications concerning the motion papers already filed are denied. As a threshold matter, the order to show cause in this matter granted defendant leave to file reply papers. While plaintiffs allegations that defendant raised new materials and issues in reply are true, they also ignore the unique posture of the instant motion given the age of this action and the availability of information concerning it. The Court is still attempting to locate the hard copy Court file for this action, and defendant stated in her opening papers that she did not have access to critical information about this action. Once defendant had access to that information — including materials plaintiff was directed to produce to defendant as part of the order to show cause, necessarily after defendant had filed its opening papers in the instant motion — defendant raised them in her reply papers. Given the circumstances, that is to be expected, and the remedy to such an issue would have been for the Court to grant plaintiff leave to surreply in any event. While plaintiff should have sought leave to file a surreply before filing, the Court will overlook that technical error in plaintiff’s motion practice as the Court would have assuredly granted a request for such leave. As to plaintiffs allegations that defendant included inflammatory and unnecessary accusations and materials in its reply papers, the Court will not strike papers for having been filed as part of a hotly-contested motion that has seemingly caught the passions of the parties and their counsel. The Court is aware of the sharp disagreement between opposing sides over the allegations in this case, and will address a portion of those disagreements now, and the remaining portion following a traverse hearing. In the interim, the parties and their counsel are reminded of the New York State Standards of Civility promulgated by then-Chief Judge Kaye in 1997 and the aspirational guidelines they contain, and the Court will leave the matter there.² As to the papers at issue, the Court will accept the papers filed, and give each of them whatever weight they earn on their merits. Turning to the substantive merits of the instant motion, the Court finds that defendant has met her burden in challenging service sufficient to warrant a traverse hearing.³ As plaintiff notes in opposition, “a process server’s affidavit of service constitutes prima facie proof of proper service,” and that “to rebut this prima facie showing, a defendant is required to submit a sworn, nonconclusory denial of service or swear to specific facts that rebut the statements in the process server’s affidavit.” U.S. Equities Corp. v. Ramirez, Dkt No. CV-019195-08/BX, slip op., at *2 (Civ. Ct., Bronx Co. Feb. 1, 2022)(citations omitted). In proving service at the outset, plaintiff relies upon the February 5, 2005 form affidavit of Leonard Safran, a then-licensed process server, who stated that he served the summons and complaint in this action upon defendant by leaving a copy with an individual of suitable age and discretion at defendant’s alleged dwelling house on January 19, 2005. Mr. Safran described the individual who accepted service as “Ms. Hernandez,” a co-tenant, who was a female with brown skin and hair, between the ages of 21 and 35, approximately 5’0″-5’3″ tall, and weighing 131-160 pounds. Although the form Mr. Safran used had a blank space where he could note if/how he confirmed defendant’s address — a blank space preceded by “Address confirmed by” — Mr. Safran left that space blank, though he did check a box on the form indicating that he spoke with Ms. Hernandez and that Ms. Hernandez confirmed that defendant was not then in active state or federal military service. In contesting service, defendant admits that she did, at one point, reside at the place of service, but moved to a different address in the Bronx in November 2002, over two years before Mr. Safran allegedly served her with the summons and complaint. Defendant expressly denies ever having a co-tenant named Ms. Hernandez or anyone matching Ms. Hernandez’s physical description as offered by Mr. Safran. In addition to her own sworn statements, defendant annexed the following evidence in support of her challenge to Mr. Safran’s affidavit: 1. A TransUnion credit report concerning defendant, indicating that defendant lived at a different address from the alleged place of service — and confirming the address defendant states was her place of residence at the time of alleged service.⁴ 2. A verified complaint in Cuomo on behalf of the People of the State of New York v. Serves You Right, Inc., et al., New York Co. Index No. 401867/2010, a civil fraud action alleging pervasive ‘sewer service’ fraud by a process serving company that employed Mr. Safran following an investigation by the New York State Office of the Attorney General and the New York State Unified Court System’s Office of Internal Affairs. Among the allegations in support of the claim is a specific allegation that Mr. Safran “had more than 25 instances in which he swore he had attempted service at two different addresses at the same time.” 3. A copy of a consent order and judgment resolving Cuomo v. Serves You Right, mandating, among other things, a fine and the dissolution of Serves You Right, Inc. 4. A copy of an assurance of discontinuance agreement between plaintiff’s counsel and the New York State Office of the Attorney General resolving an investigation of plaintiff’s counsel’s conduct and business practices in allegedly submitting false affidavits of service, in which plaintiff’s counsel agreed to certain remedial measures concerning certain civil defendants.⁵ In reply to defendant’s assertions, plaintiff states that Mr. Safran was never individually reprimanded or fined for ‘sewer service,’ and that Mr. Safran was accused of lying about attempts in support of ‘nail-and-mail’ service rather than the ‘suitable-age-and-discretion’ service at issue in this action in any event.⁶ Plaintiff also alleges (and annexes an unidentified and unverified document in support) that defendant remains registered to vote at the place of service, and last voted from that address. Plaintiff also alleges (and annexes an unidentified and unverified document in support) that plaintiff is associated with the place of service in this action in a related civil action from 2010 in which there is another judgment against defendant.⁷ Finally, plaintiff alleges that it sent a number of post-judgment letters to various addresses, which were not returned by the United States Postal Service. What plaintiff casts aside as “merely an allegation” against Mr. Safran is a sworn statement to a court by an assistant attorney general of this state that the process server plaintiff relied upon in this action lied about serving process over two dozen times as part of a larger ‘sewer service’ fraud. The voter registration information offered by plaintiff is unidentified as to source and not in admissible form, and while plaintiff submits that plaintiff last voted from that address, that last vote was, according to plaintiffs own document, in 2001: four years before defendant was allegedly served. While perhaps not conclusive evidence of ineffective service in this specific action, the sworn allegations of rampant perjury by Mr. Safran made by the Attorney General’s Office are concerning. It may be the case that Mr. Safran performed his duty without fail in this and every other matter, or that he performed admirably in some and less so in others. In any event however, the evidence presented is a far cry from a “conclusory denial with no additional evidence or probative facts to overcome the presumption of service.” U.S. Equities Corp. v. Allah, Dkt. No. CV-43219-07/BX, slip op., at *2 (Civ. Ct., Bronx Co. Feb. 24, 2022). In response to the allegations contained in the proof of service, defendant has offered specific refutations of where she lived, and with whom she lived, corroborated in part by a credit report assembled by TransUnion. Where the sole question is merely whether to question the presumption of validity and conduct a hearing, defendant’s specific refutations — corroborated by documentary evidence from a third party — and an assistant attorney general’s sworn allegations cut against the presumption of validity that plaintiff seeks to maintain here. Accordingly, defendant has met her burden to warrant a traverse hearing. As to defendant’s voter registration — even accepting plaintiffs unverified and unknown exhibit — the Court takes judicial notice both of New Yorkers’ obligations to update their addresses with the local board of elections, as well as the commonly-known fact that New Yorkers are not always timely in complying with those obligations. That defendant has not apparently voted from that address in 21 years — and 4 years prior to the alleged service at issue here — renders defendant’s voter registration of little import here. Plaintiff’s purported post-judgment letters — dated in 2010, 2015, 2017, and 2020 respectively — are perhaps the strongest challenge. The defense of lack of personal jurisdiction can be waived by a defendant who fails to take action and assert such defense at the first time defendant has notice of the judgment. Revona Realty Corp. v. Wasserman, 4 A.D.2d 444,448 (3d Dept. 1957)(collecting authorities and noting that personal jurisdiction can be waived “at the first opportunity, or in due or seasonable time”); and Allah, at *3. “Although there is no particular deadline to bring a motion contending fraud, misrepresentation, or other misconduct, and the evidence submitted need not be newly discovered,” the First Department has held that “the moving party must sufficiently explain its delay in making the motion.” Cohn v. Nationstar Mtge. LLC, 187 A.D.3d 499, 500 (1st Dept. 2020)(affirming denial of motion to vacate judgment)(quotation and citation omitted). Here, however, defendant contests having received those letters, there is no indication either that defendant responded to those letters or that the letters included copies of the judgment in this action. Moreover, as there is no proof of mailing accompanying plaintiffs papers, they are not entitled to a presumption of mailing and receipt.⁸ See, e.g., TD Bank v. Leiva, Dkt. No. CV-5353-16/BX, slip op., at *3 (Civ. Ct., Bronx Co. Dec. 20, 2021)(collecting cases and denying default judgment for not including proof of mailing of notice). Although defendant cites Patrick v. 118 E. 60th Owners Inc., 20 Misc. 3d 1131 (A), *2 (Civ. Ct, Bronx Co. 2008) in positing that the Court could dispense with a traverse hearing and grant defendant’s motion on the submissions alone, Patrick is inapposite to the allegations before the Court. While defendant’s assertions in her affidavits and the very serious allegations of misconduct alleged by the Attorney General raise questions about whether defendant was actually served with the summons and complaint in this action or when she received notice of a judgment in this action, they do not raise the type of facial evidence of ineffective service necessary to dispense with a traverse hearing. In effect, defendant seeks summary judgment on the question of service — requiring a lack of material questions of fact — and defendant has not met that burden here. Defendant has certainly raised triable issues of fact for a traverse hearing however and, as a result, the Court will hold a hearing. Accordingly, it is: ORDERED that this action is restored to the motion calendar and transferred to Part 39 for a traverse hearing, in person, on April 22, 2022 at 10:30am; ORDERED that the stay of enforcement of the judgment remain in effect pending the Court’s resolution of the instant motion following a traverse hearing; ORDERED that defendant’s compliance with the information subpoena is stayed pending the Court’s determination of the instant motion after a traverse hearing; This constitutes the Decision and Order of the Court. Dated: March 25, 2022