Opinion
CV-006804-18/QU
09-22-2020
CAVALRY SPV I, LLC, Plaintiff(s), v. RAIA P., Defendant(s).
Plaintiff's Counsel: Girvin & Ferlazzo, P.C., 20 Corporate Woods Boulevard, Albany, New York 12211, Pro Se Defendant
Plaintiff's Counsel:
Girvin & Ferlazzo, P.C., 20 Corporate Woods Boulevard, Albany, New York 12211, Pro Se Defendant
Wendy Changyong Li, J.
Part: CE Hearing Date: September 22, 2020 Calendar No.: 1 Motion Seq.: 1 LI, J.
The following papers were read on Defendant's order to show cause ("OSC ") dated August 21, 2020 seeking to vacate a default judgement, lift any bank restraints/execution/liens, and restore the case to trial calendar.
Paper Numbered
Defendant's OSC, Affidavit and Proof of Mailing 1
Plaintiff's opposition N/A
A hearing ("Hearing ") was conducted by this Court on September 22, 2020 via Skype Business live video on the OSC. Pursuant to court's case summary, a default judgement in the amount of $18,260.58 was entered on August 5, 2019. Defendant, with her son, were physically present at court CE part. Attorney for Plaintiff, Gozde H., Esq. of Girvin & Ferlazzo, P.C., appeared via Skype Business live video. Russian interpreter, Leon G., was present via Skype Business live video. This Hearing is an adjournment from a hearing conducted by this Court on September 9, 2020 where both parties wished to communicate with each other working out a settlement.
During the Hearing, Defendant, via the son, stated that: 1) Defendant failed to appear in 2018 because Defendant could not pay; 2) Defendant was on fixed income; 3) Plaintiff had an income execution on Defendant's bank account; 4) such bank account was a joint account between Defendant and the son; 5) funds in such joint bank account belonged to the son, not to Defendant; and 6) both parties failed to reach a settlement.
It is well established in the State of New York that in order to vacate a default judgement, the movant must "demonstrate both a reasonable excuse for the default and a meritorious defense" ( Newell v. Hirsch , 65 AD3d 1108 [2d Dept 2009] ; Katz v. Marra, 74 AD3d 888, 890 [2d Dept 2010] ). CPLR 5015 (a) states that a default judgement may be vacated if there is "1. excusable default, if motion [to vacate] is made within one year after service of a copy of the judgment or 4. lack of jurisdiction to render the judgement or order " [ CPLR 5015 (a) ].
Here, Defendant stated that the reason for the default was because Defendant simply could not pay. Defendant did not put forward any other evidence further explaining why Defendant failed to appear in 2018 neither during this Hearing nor during the September 9, 2020 hearing. Defendant also failed to present evidence as to when she became aware of this proceeding commenced in 2018. It is noted however that the son stated in the OSC Affidavit (signed by the son) that he "[had] a good defense because safe deposit box [was] under [his] name [and that] judgement [was] on [his] mother, not [him]" (see OSC Affidavit).
In our instant case, this Court is asked to consider Defendant's OSC seeking to vacate a default judgement against Defendant. This Court cannot rule on whether an income execution, pursuant to a judgement against Defendant and attached to a safe deposit box allegedly owned by the son or to a joint bank account owned by Defendant and the son, is valid when there is no motion submitted by the injured third party who is not a party to the instant proceeding. Here, Defendant is the movant of the OSC and this Court is left to decide on such OSC seeking to vacate a default judgement while Defendant failed to present this Court with excusable reason for the default or meritorious defense.
Accordingly, it is
ORDERED that Defendant's order to show cause is denied without prejudice.
This constitutes the DECISION and ORDER of the Court.