Opinion
6597N Index 160658/15
05-17-2018
AVIS RENT A CAR SYSTEM, LLC, doing business as PV Holding Corp., Plaintiff–Respondent, v. Thomas J. SCARAMELLINO, also known as T.J. Scaramellino, Defendant–Appellant.
Kakalec & Schlanger, LLP, New York (Daniel A. Schlanger of counsel), for appellant. Carman Callahan & Ingram, LLP, Farmingdale (Jami C. Amarasinghe of counsel), for respondent.
Kakalec & Schlanger, LLP, New York (Daniel A. Schlanger of counsel), for appellant.
Carman Callahan & Ingram, LLP, Farmingdale (Jami C. Amarasinghe of counsel), for respondent.
Friedman, J.P., Sweeny, Kapnick, Kahn, Oing, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 6, 2017, which denied defendant's motion to vacate a default judgment pursuant to CPLR 5015(a)(1) and (4), unanimously reversed, on the law, without costs, and the motion granted to the extent of remanding the matter for a traverse hearing.
Defendant allegedly rented a vehicle from plaintiff in California and damaged it while driving under the influence of alcohol. Plaintiff served defendant at the New York address listed on his driver's license and obtained a default judgment against him after he failed to answer.
On his motion to vacate the default judgment, defendant submitted a nonconclusory affidavit denying proper service and other supporting affidavits and documentary evidence demonstrating that he had moved to Massachusetts and no longer lived at the New York address at the time of service (see NYCTL 1998–1 Trust & Bank of N.Y. v. Rabinowitz, 7 A.D.3d 459, 777 N.Y.S.2d 483 [1st Dept. 2004] ). In opposition, plaintiff submitted its process server's affidavit of service demonstrating proper service pursuant to CPLR 308(2), a second affidavit by the process server averring that the doorman had confirmed that defendant resided in the New York apartment, and documents reflecting that defendant continued to list the New York apartment as his address. In light of this conflicting evidence as to whether the New York address was defendant's dwelling or usual place of abode at the time of service, the issue of whether Supreme Court obtained personal jurisdiction over defendant cannot be resolved without a traverse hearing (see Rabinowitz, 7 A.D.3d at 460, 776 N.Y.S.2d 907; Wells Fargo Bank, N.A. v. Jones, 139 A.D.3d 520, 523, 32 N.Y.S.3d 95 [1st Dept. 2016] ).
Although, as plaintiff argues, a defendant may be estopped from challenging the propriety of service of process based on his failure to notify the Department of Motor Vehicles of a change of address (see Stillman v. City of New York, 39 A.D.3d 301, 303, 834 N.Y.S.2d 115 [1st Dept. 2007] ; Vehicle and Traffic Law § 505[5] ), he cannot be estopped on that basis from asserting that he is not subject to the jurisdiction of the courts of a state in which he is not a resident (see Keane v. Kamin, 94 N.Y.2d 263, 266, 701 N.Y.S.2d 698, 723 N.E.2d 553 [1999] ; Mitchell v. Cunningham, 281 A.D.2d 192, 192, 721 N.Y.S.2d 527 [1st Dept. 2001] ). Thus, on remand, the court should determine the issue of personal jurisdiction before reaching defendant's alternative argument that he had a reasonable excuse for his default based on improper service (see e.g. Wells Fargo, 139 A.D.3d at 523, 32 N.Y.S.3d 95 ; Cipriano v. Hank, 197 A.D.2d 295, 298, 610 N.Y.S.2d 523 [1st Dept. 1994] ).
After the hearing, if Supreme Court finds that defendant was domiciled outside New York at the time of service and it therefore did not have personal jurisdiction over defendant, then defendant's motion to vacate the default judgment should be granted, the judgment vacated, and the action dismissed for lack of personal jurisdiction. Defendant is not obligated to show a reasonable excuse and meritorious defense if there is a lack of jurisdiction (see Wells Fargo, 139 A.D.3d at 522–23, 32 N.Y.S.3d 95 ; Johnson v. Deas, 32 A.D.3d 253, 254, 819 N.Y.S.2d 751 [1st Dept. 2006] ; Ortiz v. Santiago, 303 A.D.2d 1, 4, 757 N.Y.S.2d 521 [1st Dept. 2003] ). Thus, the issue of lack of jurisdiction should be considered first (see Wells Fargo, 139 A.D.3d at 522–23, 32 N.Y.S.3d 95 ; Cipriano, 197 A.D.2d at 298, 610 N.Y.S.2d 523 ). If, however, Supreme Court finds that defendant was sufficiently domiciled in New York to establish personal jurisdiction, then service was proper. In that case, the court must deny defendant's motion to vacate the default judgment pursuant to CPLR 5015(a)(1), as defendant has failed to raise a meritorious defense, either before the motion court or on this appeal (see generally Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ).