Opinion
No. 2021-02197 Index Nos. 37578/02 526840/19
05-22-2024
Ming Xue Xir, respondent, v. 422 Sunshine Court, LLC, et al., defendants, Xiachong Chen, appellant. (Matter No. 1) In the Matter of Xiaohong Chen, appellant, Xieming Xue, also known as Xie-Ming Xue, also known as Ming Xue Xir, respondent. (Matter No. 2)
Akerman LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Paul Seidenstock], of counsel), for appellant in Matter Nos. 1 and 2. Robert A. Cardali & Associates LLP (Laurence J. Sass, New York, NY, of counsel), for respondent in Matter Nos. 1 and 2.
Akerman LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Paul Seidenstock], of counsel), for appellant in Matter Nos. 1 and 2.
Robert A. Cardali & Associates LLP (Laurence J. Sass, New York, NY, of counsel), for respondent in Matter Nos. 1 and 2.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, HELEN VOUTSINAS, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries and a related proceeding, inter alia, pursuant to CPLR 5239 to vacate an execution of a judgment against certain real property, Xiaohong Chen, named in the action as Xiachong Chen, appeals from an order of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), dated September 15, 2020. The order denied Xiaohong Chen's motion pursuant to CPLR 5015(a)(4) to vacate a judgment of the same court (Gloria M. Dabiri, J.) entered January 13, 2010, in the action, insofar as entered against her, for lack of personal jurisdiction, and, in effect, denied the petition and dismissed the proceeding.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine whether attorney David H. Perlman was authorized to appear on Xiaohong Chen's behalf in the action, and thereafter for a new determination of Xiaohong Chen's motion pursuant to CPLR 5015(a)(4) to vacate the judgment entered January 13, 2010, insofar as entered against her and of the petition.
Xiaohong Chen and Yuxi Liu were members of 422 Sunshine Court, LLC (hereinafter the LLC). In 2002, Ming Xue Xir (hereinafter the plaintiff) commenced an action to recover damages for personal injuries against the LLC and Liu, among others. In 2004, the complaint was amended, inter alia, to add Chen, individually, incorrectly sued as Xiachong Chen, as a defendant. The attorney who had been representing the LLC and Liu in the action, David H. Perlman, filed a notice of appearance and verified answer on behalf of Chen and purported to represent her throughout the litigation. Following a jury trial, on January 13, 2010, the Supreme Court entered a judgment in favor of the plaintiff and against the LLC, Liu, and Chen, in the total sum of $681,752.09. Thereafter, in July 2019, based upon the judgment, the plaintiff's counsel issued a property execution, and the New York City Office of the Sheriff served upon Chen, among other things, a notice of levy and sale of her real property.
In January 2020, Chen moved pursuant to CPLR 5015(a)(4) to vacate the judgment insofar as entered against her for lack of personal jurisdiction. Chen asserted that she had never been served with process in the action and that she had not retained or consented to the representation of Perlman. Chen submitted, inter alia, an affirmation of Perlman, in which he affirmed that Chen had not signed a retainer agreement, he had no contact with her, and his representation in the action had been pursuant to the instruction of Liu alone.
Chen also commenced a special proceeding, inter alia, pursuant to CPLR 5239 seeking, among other things, to vacate the property execution and injunctive relief.
In an order dated September 15, 2020, the Supreme Court denied Chen's motion to vacate the judgment insofar as entered against her and, in effect, denied the petition and dismissed the proceeding. The court determined that, as service purportedly was effected via "nail and mail" method at an address where Chen had never lived or worked, Chen established that she was not served in the action. However, the court further determined that Chen failed to establish that Perlman did not have the authority to represent her in the action, and, therefore, his appearance on her behalf without asserting the defense of lack of personal jurisdiction waived any objection to the same. Chen appeals.
Generally, "[t]he filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction" (U.S. Bank N.A. v Pepe, 161 A.D.3d 811, 812; see CPLR 320[b]; Federal Natl. Mtge. Assn. v Beckford, 196 A.D.3d 546, 548; Skyline Agency v Coppotelli, Inc., 117 A.D.2d 135, 140). However, "the unauthorized appearance of an attorney is insufficient to confer jurisdiction" (New Is. Invs. v Wynne, 251 A.D.2d 560, 561; see Federal Natl. Mtge. Assn. v Beckford, 196 A.D.3d at 548). A party asserting that an attorney's appearance was unauthorized has the burden of showing it (see Sperry v Reynolds, 65 NY 179, 183-184; Globe Trade Capital, LLC v Hoey, 199 A.D.3d 769, 770; National Loan Invs., L.P. v Piscitello, 21 A.D.3d 537, 538).
Here, contrary to the Supreme Court's conclusion, Chen sufficiently rebutted the presumption that Perlman's appearance on her behalf was authorized by submitting Perlman's affirmation and her own affidavit in which she denied, inter alia, retaining Perlman and averred that she did not consent to Liu retaining Perlman to appear on her behalf. Under these circumstances, a hearing was warranted to resolve the factual dispute as to whether Perlman's appearance on behalf of Chen in the action was authorized and, by extension, whether the court acquired personal jurisdiction over her (see New Is. Invs. v Wynne, 251 A.D.2d at 561; Skyline Agency v Coppotelli, Inc., 117 A.D.2d at 139; see also CPLR 2218).
Accordingly, we reverse and remit the matter to the Supreme Court, Kings County, for a hearing to determine whether Perlman was authorized to appear on Chen's behalf in the action, and thereafter for a new determination of Chen's motion pursuant to CPLR 5015(a)(4) to vacate the judgment in the action insofar as entered against her and of the petition.
BRATHWAITE NELSON, J.P., MALTESE, VOUTSINAS and TAYLOR, JJ., concur.