| HSBC Bank USA, N.A. v A&R Trucking Co., Inc. |
| 2009 NY Slip Op 07762 [66 AD3d 606] |
| October 29, 2009 |
| Appellate Division, First Department |
| HSBC Bank USA, N.A., Successor by Merger to HSBC BankUSA, Formerly Known as Marine Midland Bank, Successor by Conversion to Marine MidlandBank, N.A., Appellant, v A&R Trucking Company, Inc., Defendant, and ValiaMamalakis, Respondent. |
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Order, Supreme Court, New York County (Richard F. Braun, J.), entered February 2, 2009,which granted defendant Mamalakis's motion to vacate a default judgment, directed plaintiff torestore any amounts taken from her checking account, and dismissed this action against her,unanimously affirmed, with costs.
In moving to vacate the judgment, Mamalakis alleged that process was not properly servedin accordance with the "nail and mail" provision of CPLR 308 (4). After a traverse hearing, thecourt vacated the judgment and dismissed this action (see NYCTL 2004-A Trust v Faysal, 62 AD3d 409 [2009]) afterdetermining that service had been attempted at an address where Mamalakis did not reside.
Plaintiff argues that in appropriate circumstances defendant may be deemed to have waivedher jurisdictional objections, but such circumstances are not present here. Plaintiff's reliance onCalderock Joint Ventures, L.P. vMitiku (45 AD3d 452 [2007]) and Lomando v Duncan (257 AD2d 649 [1999])is misplaced, as the defendants in those cases either explicitly or implicitly participated in theaction, thus acknowledging the validity of the judgment, or demonstrated a lack of good faith ordelay in asserting their rights.
Here, there is no suggestion that Mamalakis ever acknowledged the validity of the judgment.She only learned of it when her bank account was levied upon. Some 7 to 10 months later, whenshe allegedly learned that plaintiff was seeking to make a further collection, Mamalakis obtainedcounsel and moved to vacate the judgment. There is no indication in the [*2]record that she demonstrated a lack of good faith, or was otherwisedilatory in asserting her rights. Concur—Sweeny, J.P., Buckley, DeGrasse, Freedman andAbdus-Salaam, JJ.