Opinion
2019-1211 Q C
05-14-2021
U.S. EQUITIES CORP., Appellant, v. Iwan RIDWAN and Latifah Ila, Respondents, Donovan Ridwan, Nonparty-Respondent.
Linda Strumpf, for appellant. Iwan Ridwan and Latifah Ila, respondent pro se (no brief filed). Donovan Ridwan, nonparty-respondent pro se (no brief filed).
Linda Strumpf, for appellant. Iwan Ridwan and Latifah Ila, respondent pro se (no brief filed).
Donovan Ridwan, nonparty-respondent pro se (no brief filed).
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ.
ORDERED that the order is reversed, without costs, the default judgment is reinstated, and the matter is remitted to the Civil Court for a new determination, following a hearing, of Donovan Ridwan's motion to vacate the income execution.
In an action to recover for breach of a credit card agreement, a default judgment was entered on March 31, 2005 against defendants Iwan Ridwan and Latifah Ila in the principal sum of $4,392.86. In December 2018, plaintiff obtained an income execution and notice of levy against "Iwan Ridwan." On February 22, 2019, Donovan Ridwan moved by order to show cause to vacate the income execution as against him. In support of the motion, Donovan Ridwan alleged that he is not the individual named in the action, that he never used the name "Iwan Ridwan," and that he was the victim of identity theft. In response, plaintiff's counsel alleged that Iwan Ridwan and Donovan Ridwan are the same person and that the Social Security number and date of birth are the same for both Iwan Ridwan and Donovan Ridwan. In reply, Donovan Ridwan alleged, among other things, that plaintiff's proof indicates dates of birth of "/70," "12/1970" and "1971." However, his date of birth, as reflected on his New York State driver's license, is December 10, 1967. The Civil Court characterized the motion as seeking "to vacate the default judgment," determined that Donovan Ridwan presented a reasonable excuse for his default and a meritorious defense to the action, and granted his motion to "vacate the default judgment." On appeal, plaintiff reiterates the arguments made in the Civil Court and states that, in any event, the court improperly vacated the default judgment.
The default judgment entered against defendants Iwan Ridwan and Latifah Ila should not have been vacated based upon the allegations made by Donovan Ridwan, who is claiming that he is not the individual named in this action. Consequently, we find that the Civil Court improperly vacated the default judgment and we reinstate it.
CPLR 5240 permits a court at any time, on its own initiative or on a motion of any interested person, to issue an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure ( see Distressed Holdings, LLC v Ehrler , 113 AD3d 111, 120 [2013] ; U.S. Equities Corp. v Rivera , 60 Misc 3d 131[A], 2018 NY Slip Op 50996[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). The Civil Court did not decide whether the income execution, issued pursuant to the default judgment entered against defendants Iwan Ridwan and Latifah Ila should be vacated based on Donovan Ridwan's claim of identity theft. Given that the motion papers raise a question of fact with respect to that issue, the matter must be remitted to the Civil Court for a new determination, following a hearing, of Donovan Ridwan's motion.
Accordingly, the order is reversed, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of Donovan Ridwan's motion to vacate the income execution.
ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.