| Canelas v Flores |
| 2013 NY Slip Op 08584 [112 AD3d 871] |
| December 26, 2013 |
| Appellate Division, Second Department |
| Wilfredo Rosario Canelas, Appellant, v NelsonFlores, Respondent, et al., Defendant. |
—[*1] Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), forrespondent and defendant Victor R. Flores.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Spodek, J.), dated July 10, 2012, which, aftera hearing to determine the validity of service of process, granted the motion of thedefendant Nelson Flores to vacate a judgment of the same court entered February 14,2008, entered upon that defendant's failure to appear or answer, and, thereupon, todismiss the complaint insofar as asserted against him.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant Nelson Flores to vacate the judgment and, thereupon, to dismiss the complaintinsofar as asserted against him is denied.
When a defendant seeking to vacate a default judgment raises a jurisdictionalobjection pursuant to CPLR 5015 (a) (4), the court is required to resolve thejurisdictional question before determining whether it is appropriate to grant adiscretionary vacatur of the default under CPLR 5015 (a) (1) (see Emigrant Mtge. Co., Inc. vWestervelt, 105 AD3d 896, 897 [2013]; Roberts v Anka, 45 AD3d 752 [2007]).
While the respondent's sworn denial of service may have been sufficient to rebut theplaintiff's prima facie showing that the respondent was properly served pursuant to CPLR308 (2) (see U.S. Bank, N.A. vArias, 85 AD3d 1014, 1016 [2011]; Emigrant Mtge. Co., Inc. vWestervelt, 105 AD3d at 897; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743 [2011]),the issue of whether the respondent was estopped from challenging the propriety ofservice due to his failure to notify the Commissioner of the Department of MotorVehicles (hereinafter the DMV) of his purported change of address, as required byVehicle and Traffic Law § 505 (5), should have been decided first even if servicehad been improper (seeKalamadeen v Singh, 63 AD3d 1007, 1008 [2009]). The plaintiff's submissionsin opposition to the respondent's motion to vacate the default judgment established,prima facie, that the address where the respondent was served was the same address thatwas listed on the police accident report and with the DMV at the time of service (see Hidalgo v Cruiser TaxiCorp., 101 AD3d 950, 951 [2012]; Candela v Johnson, 48 AD3d 502, 503 [2008]; Kandov v Gondal, 11 AD3d516 [2004]). In reply, [*2]the respondent failed torebut this showing. Since the respondent failed to notify the DMV of his change ofresidence, as required by Vehicle and Traffic Law § 505 (5), he was estopped fromraising a claim of defective service (see Labozzetta v Fabbro, 22 AD3d 644, 645 [2005];Ortiz v Santiago, 303 AD2d 1 [2003]; Burke v Zorba Diner, 213 AD2d577 [1995]). Accordingly, that branch of the respondent's motion which was pursuant toCPLR 5015 (a) (4), based on lack of personal jurisdiction, should have been denied.Likewise, the respondent was not entitled to relief pursuant to CPLR 5015 (a) (1), basedupon excusable default; the respondent's purported change of residence is not areasonable excuse, because he failed to comply with Vehicle and Traffic Law §505 (5) (see Kalamadeen v Singh, 63 AD3d at 1008; Candela v Johnson,48 AD3d at 503; Labozzetta v Fabbro, 22 AD3d at 645).
Moreover, the respondent was not entitled to relief pursuant to CPLR 317, since hisfailure to receive notice of the summons was a deliberate attempt to avoid such notice(see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143[1986]). The respondent's direct involvement in the subject accident and his failure tonotify the DMV of his change of address in compliance with Vehicle and Traffic Law§ 505 (5) raised an inference that the respondent deliberately attempted to avoidnotice of the action (see Hidalgo v Cruiser Taxi Corp., 101 AD3d at 951;Kalamadeen v Singh, 63 AD3d at 1008; Cruz v Narisi, 32 AD3d 981 [2006]). The respondent failedto rebut this inference.
Accordingly, the Supreme Court should have denied the respondent's motion tovacate the judgment and, thereupon, to dismiss the complaint insofar as asserted againsthim. Dillon, J.P., Leventhal, Chambers and Miller, JJ., concur.