| Caba v Rai |
| 2009 NY Slip Op 05252 [63 AD3d 578] |
| June 25, 2009 |
| Appellate Division, First Department |
| Suzana Caba, Appellant, v Lidawattee Rai,Respondent. |
—[*1]
Orders, Supreme Court, Bronx County (Nelson S. Roman, J.), entered January 14 and April25, 2008, which, in an action for personal injuries, denied plaintiff's motion to attach defendant'sreal property in order to satisfy a default judgment, and, after a traverse hearing, granteddefendant's cross motion to vacate the default judgment and for leave to serve an answer,reversed, on the law, without costs, the cross motion denied and the matter remanded to SupremeCourt to reconsider and determine plaintiff's motion to compel the sheriff to seize and selldefendant's property.
On November 23, 1999, plaintiff commenced this action against defendant seeking damagesfor personal injuries she sustained on property owned by defendant. Plaintiff's process serverserved defendant by delivering a copy of the summons and complaint to defendant's daughter atdefendant's residence, i.e., 1221 Shakespeare Avenue in the Bronx, on December 11, 1999(see CPLR 308 [2]). The process server also mailed a copy of the summons andcomplaint to that address as required by CPLR 308 (2). The affidavit of service was filed in theBronx County Clerk's Office on January 11, 2000, thereby completing service (see id.).Thus, defendant's deadline for answering was February 22, 2000 (see id.; CPLR 320 [a];General Construction Law §§ 24, 25-a). In March 2002, plaintiff moved for adefault judgment based on defendant's failure to appear or answer the action. Supreme Courtgranted that motion by an order entered on May 1, 2002, and, by an order dated July 17, 2003,Supreme Court awarded plaintiff $250,000 in damages for pain and suffering. A judgment wasentered on November 20, 2003 awarding plaintiff those damages plus interest.
In June 2007, plaintiff moved to compel the sheriff to seize and sell 1221 ShakespeareAvenue, real property owned by defendant, to satisfy the November 2003 judgment. Defendantcross-moved, among other things, to vacate the default judgment under CPLR 317 or 5015.While the court rejected defendant's contention that the judgment should be vacated under CPLR317 because she moved for vacatur more than one year after she learned of the judgment, thecourt found that defendant satisfied the requirements for vacatur under CPLR 5015 (a)(1)—a reasonable excuse for the default and a potentially meritorious defense. The courtalso granted that portion of the motion that sought an extension of time to answer the action "tothe extent of setting the matter down for a traverse hearing," concluding that if "defendant wasserved with process, leave to interpose an answer will be denied, and the Court will enter adefault judgment [*2]in favor of plaintiff. Should the Court findthat service was not properly effectuated, leave to interpose an answer shall be granted." By asubsequent order, Supreme Court granted defendant leave to serve a belated answer because"plaintiff failed to proffer [her] process server for the purpose of conducting the [traverse]hearing." Plaintiff appeals from both orders.
CPLR 317 and 5015 (a) (1) allow a defendant against whom a default judgment has beenrendered to move to vacate that default. CPLR 317 provides that "[a] person served with asummons other than by personal delivery to him or to his agent for service designated under rule318 . . . who does not appear may be allowed to defend the action within one yearafter he obtains knowledge of entry of the judgment, but in no event more than five years aftersuch entry, upon a finding of the court that he did not personally receive notice of the summonsin time to defend and has a meritorious defense." Thus, this statute is available only to adefendant who (1) was served by a method other than personal delivery, (2) moves to vacate thejudgment within one year of learning of it (but not more than five years after entry), and (3)demonstrates a potentially meritorious defense to the action. By contrast, CPLR 5015 (a) (1) isavailable to any defendant against whom a default judgment was entered, provided that thedefendant can demonstrate both a reasonable excuse for the default and a potentially meritoriousdefense. A defendant seeking relief under section 5015 (a) (1) must move to vacate the defaultjudgment within one year of service on defendant of the default judgment with notice of entry.Both provisions assume personal jurisdiction exists over the defaulting defendant and providethat party with an opportunity to open the default and contest the merits of the plaintiff's claim(see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLRC317:1, at 249-250; see also Siegel, Practice Commentaries, McKinney's Cons Laws ofNY, Book 7B, CPLR C5015:6, at 210). If the defaulting defendant asserts that the court lackedpersonal jurisdiction over him or her, the defendant should seek dismissal of the action underCPLR 5015 (a) (4) (see Alexander, Practice Commentaries, McKinney's Cons Laws ofNY, Book 7B, CPLR C317:1, at 250), a motion that has no stated time limit and can be made atany time (Siegel, Practice Commentaries, McKinney's Cons Laws, Book 7B, CPLR C5015:3, at205-206).
In moving to vacate the default judgment, defendant argued that she was entitled to reliefunder CPLR 317 or 5015 (a) (1) and sought to vacate the judgment and for an extension of timeto interpose an answer; she did not seek relief under section 5015 (a) (4) or request that thecomplaint be dismissed for want of personal jurisdiction. To be sure, in her notice of crossmotion, defendant requested an order "vacating and setting aside the defendant's [default]pursuant to CPLR 5015 and/or CPLR 317, extending the defendant's time to answer andcompelling plaintiff to accept defendant's answer pursuant to CPLR 2004." Nowhere in hermotion papers, however, did defendant suggest that the action should be dismissed because thecourt lacked personal jurisdiction over her. Although defendant did argue that she had notreceived the summons and complaint (or the default judgment), that argument was asserted bydefendant in an effort to establish that she had a reasonable excuse for her default. What theconcurring Justice considers to be part of the "crux" of defendant's motion, "the absence of anypersonal jurisdiction," was never stated in the motion. Accordingly, since defendant sought tovacate the judgment and defend the action on the merits, Supreme Court erred in ordering atraverse hearing; defendant charted a specific procedural course that Supreme Court improperlyaltered (see Mitchell v New [*3]York Hosp., 61 NY2d208, 214 [1984]).[FN1]
With respect to her contention that she was entitled to relief under CPLR 317, defendantobtained knowledge of the judgment in January 2004 when she received a credit report listingthe judgment, and did not move to vacate the default until August 2007. Thus, that portion ofdefendant's cross motion seeking relief under CPLR 317 was untimely.
Regarding that portion of the cross motion that sought relief under CPLR 5015 (a) (1), thereis no indication when the default judgment with notice of entry was served on defendant. Thus,assuming without deciding that defendant properly could seek relief under section 5015 (a)(1),[FN2]the motion appears timely and plaintiff does not argue to the contrary. Nonetheless, defendant isnot entitled to relief under section 5015 (a) (1). Although defendant denied receiving thesummons and complaint or any other papers in this matter until she was served with plaintiff'smotion to compel the sheriff to seize and sell her property, defendant learned of the judgment inJanuary 2004. She did not move to vacate the default, however, until August 2007 and only didso in response to plaintiff's motion to seize and sell her property. Moreover, plaintiff's counsel[*4]averred that both defendant and her attorney contactedplaintiff's counsel on May 11, 2005 about vacating the judgment, an averment that iscorroborated by phone message slips generated by plaintiff's counsel's secretary and whichdefendant does not dispute. Thus, defendant failed to proffer a reasonable excuse for hersubstantial delay in moving to vacate the judgment (see Bekker v Fleischman, 35 AD3d334 [2006]; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716 [2004]; Duran vEdderson, 259 AD2d 728 [1999]). In light of our conclusion that defendant failed to proffera reasonable excuse, we need not determine whether she offered a potentially meritoriousdefense to the action. Concur—Gonzalez, P.J., Catterson and McGuire, JJ.
Mazzarelli and Acosta, JJ., concur in a separate memorandum by Mazzarelli, J., as follows: Iagree that the court's order granting the cross motion should be reversed. However, I disagreewith the majority's holding that the motion court erred in directing a traverse because defendant"charted a specific procedural course" by failing to mention CPLR 5015 (a) (4) in her notice ofcross motion and other submissions. The crux of defendant's motion was that the affidavit ofservice filed by plaintiff, if not the entire action, was a sham and that the judgment was enteredin the absence of any personal jurisdiction. Both defendant and her daughter submitted affidavitsin which they denied ever having received a copy of the summons and complaint. Under thesecircumstances, the court properly treated the motion as contesting service, notwithstanding that itconflated that issue with the issue of whether defendant had a reasonable excuse for not havingappeared in the action.
I also depart from the majority to the extent that it presumes that defendant would have beenentitled to the traverse had she expressly invoked CPLR 5015 (a) (4). I do not believe that thetraverse was properly directed upon the papers submitted here by defendant.
The affidavit of service filed by plaintiff was prima facie evidence that defendant wasproperly served with the summons and complaint pursuant to CPLR 308 (2) (see NYCTL1998-1 Trust & Bank of N.Y. v Rabinowitz, 7 AD3d 459, 460 [2004]). It asserted that onDecember 11, 1999 process was delivered to defendant's daughter, as a person of suitable ageand discretion, and that an additional copy was mailed that day to defendant at the same address.To create an issue of fact as to whether plaintiff obtained jurisdiction over defendant, defendantwas required to deny service in a nonconclusory fashion (id.). However, defendant'sdaughter merely swore that "[o]n December 11, 1999 I was not served with a summons andverified complaint in the above cited matter." That statement was insufficient to force a traversehearing (compare Haberman v Simon, 303 AD2d 181 [2003] [traverse hearing orderedwhere defendant asserted that his physical description did not match the description of him givenin the affidavit of service]; Ananda Capital Partners v Stav Elec. Sys. [1994], 301 AD2d430 [2003] [defendant claimed he was at a meeting in Brooklyn at the same time as the processserver swore to have served him in Manhattan]).
Defendant's own denial was similarly bald. She swore only that "[o]n no occasion did I everreceive any summons and complaint." She did attempt to create an issue of fact by claiming that,on December 11, 1999, she no longer lived at 4415 Furman Avenue, Bronx, New York, theaddress contained on the last page of the complaint. However, it is not the address on thecomplaint that controls, but the address on the affidavit of service. The affidavit of service [*5]clearly states that the process server mailed an extra copy of theprocess to the first floor of 1221 Shakespeare Avenue, Bronx, New York. Defendant concedesthat she lived at that address on the date of mailing. Accordingly, her conclusory statement thatshe never received the mailing was also insufficient to create an issue of fact and require atraverse hearing (see Rosario v Beverly Rd. Realty Co., 38 AD3d 875 [2007]; 96Pierrepont v Mauro, 304 AD2d 631 [2003]).
Footnote 1: If defendant had raised an issueregarding whether the court had personal jurisdiction over her, Supreme Court would have beenobliged to determine that issue first, as defendant would have been entitled to an unconditionaldismissal of the complaint if the court lacked personal jurisdiction over her. "When a defendantseeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015 (a)(4), the court is required to resolve the jurisdictional question before determining whether it isappropriate to grant a discretionary vacatur of the default under CPLR 5015 (a) (1)" (Robertsv Anka, 45 AD3d 752, 753 [2007], lv dismissed 10 NY3d 851 [2008]; seeDelgado v Velecela, 56 AD3d 515 [2008]; Alexander, Practice Commentaries, McKinney'sCons Laws of NY, Book 7B, CPLR C317:1, at 250). We take no position on whether defendantwas entitled to a traverse hearing; we conclude only that if defendant sought dismissal of theaction on the ground that the court lacked personal jurisdiction over her the court would havebeen obligated to address that issue before deciding whether to vacate the judgment under CPLR5015 (a) (1). Thus, the concurring Justice errs in stating that we "presume[ ] that defendantwould have been entitled to the traverse had she expressly invoked CPLR 5015 (a) (4)."
Footnote 2: It is far from obvious that aparty served in a manner other than personal delivery may seek relief under CPLR 5015 (a) (1)when a motion by that party under CPLR 317 would be time-barred. Under the canon ofstatutory interpretation that a specific provision is controlling over a general provision (seeP.T. Bank Cent. Asia v Chinese Am. Bank, 229 AD2d 224, 234-235 [1997]), the timeprescribed in CPLR 317 may trump the time limit specified in the more encompassing statute,CPLR 5015 (a) (1). However, we need not and do not decide that issue.