Opinion
46362/97.
Decided July 28, 2005.
Sean Lewis seeks to vacate a default judgment entered against him on December 10, 1999 on the Verified Complaint of Brookdale Hospital Medical Center. At the time the Summons and Verified Complaint were delivered to an address in Brooklyn, Mr. Lewis was incarcerated at a State correctional facility.
The Verified Complaint alleged two causes of action against Mr. Lewis and Annie Lewis, his mother. In the first, Brookdale alleged that it rendered hospital and medical services to Anthony Norman (Mr. Lewis's son) on April 24, 1995, but that it had not been paid the "reasonable value and agreed price" for the services. (Verified Complaint, ¶ 5.) In the second, Brookdale alleged that a no-fault insurance carrier sent a check to Defendants, representing payment for services rendered to Anthony Norman, but that Defendants had failed to remit the payment to Brookdale. (Verified Complaint, ¶¶ 10 and 11.)
In separate affidavits of service, a licensed process server stated that he served the Summons and Complaint upon Sean Lewis and Annie Lewis by delivering copies to "'John' Lewis relative of the defendant" on October 21, 1997 at 669 Jerome Street, Brooklyn, and by mailing copies to them at the same address two days later. Mr. Lewis failed to answer or otherwise appear in the action.
Annie Lewis filed a verified Answer in Person on November 10, 1997, in which she asserted: "I am not guilty because the child Anthony Norman is not in my custody. I am not responsible for his bills. I did not receave ( sic) a check from any insurance company for hospital bill." Ms. Lewis failed to appear for trial on May 4, 1998.
On September 22, 1999, Brookdale moved for judgment against Mr. Lewis and Ms. Lewis. Neither appeared on the October 26, 1999 return dare, and the motion was granted "on default" on that date by the Hon. Wilma Guzman. Judge Guzman's Decision/Order was served on Defendants on November 5, 1999, and on January 7, 2000 Defendants were purportedly advised by Plaintiff's counsel that a judgment had been entered against them. All papers were served on Defendants at the 669 Jerome Street address.
In his Affidavit in Support of Order to Show Cause dated April 11, 2005, Mr. Lewis asserts that he had not been served with a summons and complaint in this action, and that his first notice of legal action was through a credit report. He also asserts, in the space provided on the affidavit for a defense, "I had no knowledge of the situation".
On the April 25, 2005 return date for Mr. Lewis's motion, which was not before this judge, the motion was adjourned to June 24 "for Sean Lewis to obtain proof of prior residence in 95". On the adjourned return date, Mr. Lewis provided no "proof" of his residence in 1995 (when his son Anthony was treated at Brookdale Hospital). He did present a statement signed by his mother, Annie Lewis, before a notary public in North Carolina, which asserts that "Annie Lewis had custody of Anthony Norman since January 1989 to the present, at no time during this period did his father live with us." Mr. Lewis contends that his mother was solely responsible for Anthony's medical care when the boy was treated at Brookdale.
Mr. Lewis also delivered to the Court a Certificate of Disposition Indictment showing that on November 7, 1996 Mr. Lewis was convicted in Supreme Court, Kings County, of criminal sale of a controlled substance in the 5th degree, and that on January 10, 1997 he was sentenced to a term of two to four years imprisonment. Several days later, Mr. Lewis delivered to the Court a printout from the website of the New York State Department of Correctional Services showing that on January 30, 1997 he was transferred to State prison; that he was not eligible for parole until January 9, 1999; and that he was eventually released on parole on April 3, 2001. Brookdale "does not dispute the veracity of these documents." (Affirmation of William J. Cortellessa, Esq. dated July 6, 2005, ¶ 3.)
In its Affirmation in Opposition to Order to Show Cause and its supplemental Affirmation in response to Mr. Lewis's later submission, Brookdale argues that there is no basis to vacate the default judgment entered against Mr. Lewis. First, pointing to Montes v. Seda ( 208 AD2d 388 [1st Dept 1994]), Brookdale contends that service of the Summons and Complaint on Mr. Lewis complied with CPLR 308(2), and was sufficient to confer personal jurisdiction over him. Second, Brookdale relies on the time limitations specified in CPLR 317 and CPLR 5015(a) in contending that Mr. Lewis may not otherwise seek vacatur of the judgment. And third, Brookdale maintains that Mr. Lewis cannot show a meritorious defense, because, among other reasons, Section 413 of the Family Court Act and related caselaw obligate him to pay his son's medical expenses.
The First Department's decision in Montes v. Seda ( 208 AD2d 388) and the trial court decision that it affirmed ( 157 Misc 2d 895 [Sup Ct, NY County 1993]) are the only published decisions of New York courts addressing the effectiveness of service on an incarcerated person through delivery at a place other than the prison. The First Department agreed with the trial court that
"the Manhattan address where plaintiff delivered a copy of the summons and complaint to defendant's daughter was defendant's 'usual place of abode' within the meaning of CPLR 308(2), as evidenced by the listing of that address on defendant's driver's license and the proof that she kept her belongings there. A different conclusion is not required by the fact that defendant was in prison serving an 18-month sentence at the time of such service, or that she may have lived with her boyfriend for several months before going to prison." ( 208 AD2d at 388.)
The particular facts cited by the appellate court in Montes the address on defendant's driver's license and location of her belongings cannot in themselves, of course, be determinative of jurisdiction. Those in Mr. Lewis's position would have little need to update a driver's license while in prison, and would probably prefer to have their belongings with them.
The lower court, considering the requirements of due process, concluded that "service upon defendant's daughter at the prior dwelling of the defendant was reasonably calculated to inform defendant of the pendency of this action as there was no testimony by her or her daughter that defendant's whereabouts were not then known by the daughter." ( Montes v. Seda, 157 Misc 2d at 897.) And, in referring to the requirements of permanence and stability articulated by the Court of Appeals in Feinstein v. Bergner ( 48 NY2d 234, 239 n. 3 [1979]), the lower court concluded that prison will not be deemed a defendant's "dwelling place or usual place of abode" for purposes of "suitable person" service pursuant to CPLR 308(2), "at least in cases not involving long-term imprisonment." ( See Montes v. Seda, 157 Misc 2d at 898.)
Montes v. Seda ( 208 AD2d 388) compels the conclusion that service of the Summons and Complaint on Mr. Lewis through delivery to a "suitable person" at his mother's address was effective to establish the court's jurisdiction over him. Mr. Lewis has provided no evidence that, prior to his incarceration, he resided anywhere else, nor did he even contend, on the adjourned return date at least, that it was not his "dwelling place or usual place of abode" prior to prison.
( See CPLR 308.) Although his incarceration was longer than the 18-month period in Montes, it cannot be characterized as the type of "long-term imprisonment" that might distinguish Montes.
There is a difference between this case and Montes in that Annie Lewis's Answer demonstrates a divergence of interest between her and her son with respect to the legal obligation for her grandson's care. Had the Summons and Complaint been delivered to her, the Court might find that divergence of interest sufficient to distinguish Montes. ( See Weidemann v. Keith, 127 AD2d 831 [2nd Dept 1987]; House of Bowery Corp. v. Ensley, 182 Misc 2d 471, 474-76 [Civ Ct, NY County 1999].) But his mother's occupancy of the apartment does not disqualify it as Mr. Lewis's "dwelling place or usual place of abode", which is a determination as to the suitability of the place and not the person.
From the perspective of due process, it is sufficient if the method of service is "reasonably calculated, under all the circumstances, to apprise [the] interested [party] of the pending of the action." ( See Bossuk v. Steinberg, 58 NY2d 916, 918-19 [ quoting Mullane v. Central Hanover Bank Trust Co., 339 US 306, 314.) "Our law has long been comfortable with many situations in which it was evident, as a practical matter, that parties to whom notice was ostensibly addressed would never in fact receive it." ( Dobkin v. Chapman, 21 NY2d 490, 502.) "Of considerable significance" in assessing service under due process standards is the ability of a defendant who does not receive actual notice to vacate a resulting judgment in appropriate circumstances. ( See id., at 505.)
CPLR 317 and CPLR 5015 are those vehicles. "[I]n no event" may CPLR 317 be used to vacate a judgment more than five years after the judgment was entered, and the courts appear to strictly enforce the limit. ( See State of New York Higher Education Services Corp. v. Upshur, 252 AD2d 333, 337 [3rd Dept 1999]; Exchange Leasing Corp. v. Roycliff Hired Car Service, Inc., 47 AD2d 609, 609 [1st Dept 1975].) CPLR 5015(a)(1) allows a motion to vacate in circumstances that might be present here, but only "within one year after service of a copy of the judgment . . . with written notice of entry upon the moving party." The Affirmation in Opposition to Order to Show Cause recites that such service was made on January 7, 2000, and a copy of a letter bearing that date, and addressed to Sean Lewis and Anne Lewis at the 669 Jerome Street address, is attached. But the recitation is neither stated to be on personal knowledge, nor provides any description of office practices and procedures that would justify a presumption of mailing and receipt. ( See Hospital for Joint Diseases v. Nationwide Mutual Ins. Co., 284 AD2d 374, 375 [2nd Dept 2001].)
In any event, a court has "inherent power" to vacate a judgment beyond the one-year period in the interest of justice. ( See Cippitelli v. Town of Niskayuna, 277 AD2d 540, 541 [3rd Dept 2000]; Queens Trading Corp. v. Martin, 60 AD2d 911, 912 [2nd Dept 1978].) Even assuming that Annie Lewis still resided at 669 Jerome Street more than two years after she filed her Answer with that address, it appears that Mr. Lewis was still incarcerated, and would not have benefitted from the notice. The Court also notes that Brookdale was permitted to enter judgment against Annie Lewis and Mr. Lewis, even though it did not take proceedings for entry of judgment until well over one year after their respective defaults. ( See CPLR 3215[c].)
"CPLR 5015 (a) (1) permits a court to vacate a judgment entered on default when the defendant demonstrates a reasonable excuse for the default, and the existence of a meritorious defense."( O'Loughlin v. Delisser, 15 AD3d 372, 373 [2nd Dept 2005]; see also Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 NY2d 138, 141.) Here, the absence of actual notice, explained by the circumstances of service, is a sufficient reasonable excuse.
The "meritorious defense" requirement does not present a particularly high barrier. The defendant need not necessarily present admissible evidence of the type required on a motion for summary judgment. ( See Goldman v. City of New York, 287 AD2d 482, 483-84 [2nd Dept 2001].) And the "quantum of proof" required is "not as great" as would be needed to oppose a motion for summary judgment. ( See Clark v. MGM Textiles Industries, Inc., 307 AD2d 520, 521 [3rd Dept 2003].)
The proper scope of Sean Lewis's burden of "meritorious defense" should be measured by the showing made by Brookdale in obtaining the default judgment. Brookdale's motion for a default judgment was supported by an Affidavit of Facts Constituting the Claim that contained only three substantive paragraphs. In one, Brookdale's Director of Patient Accounts asserted that Anthony Norman was a patient and "services were rendered at the express or implied request of the defendants." In the other two, the affiant stated the amount owed and that it had not been paid. Brookdale also submitted a separate Plaintiff's Affidavit, sworn to by the same Director, to support the "fair and reasonable value" of the services rendered. This second affidavit is generic, referring to the "patient" without apparent knowledge that he was only six years old. Finally, there was an attorney's Affirmation that repeated the allegations of the Complaint as to the diversion of funds from an insurance check, but the attorney's assertions were clearly without personal knowledge, and, therefore, without any evidentiary value. ( Zuckerman v. City of New York, 49 NY2d 557, 562.)
In opposition to Mr. Lewis's motion to vacate, Brookdale supplements its showing on its motion to enter default judgment with another attorney affirmation, also made without personal knowledge of the material facts, as well as documents apparently from Brookdale's file. The admissibility of the documents is not supported by an affidavit of anyone at Brookdale, and they, too, therefore, are without evidentiary value as to Mr. Lewis. Having been submitted by Brookdale, however, it can not object to their consideration, and the documents undermine its contention that the services rendered to Mr. Lewis's son were rendered at Mr. Lewis's "express or implied request."
This Court would agree with Brookdale that, if Brookdale rendered medical services to Anthony at his father's request, his father would be obligated to pay the reasonable value of the services. ( See Shapira v. United Medical Service, Inc., 15 NY2d 200, 210; Crouse Irving Hospital v. City of Syracuse, 283 AD 394, 395 [4th Dept 1954].) All of the evidence on this motion, however, suggests that Mr. Lewis did not request those services. When Anthony was admitted for treatment on April 24, 1995, Annie Lewis signed the General Admission Consent, and the records indicate that the child was accompanied only by his grandmother. Mr. Lewis's name appears in the submitted documents only on authorizations for release of information to the no-fault carrier that were signed more than two months later on July 6, 1995.
Indeed, Brookdale's position is based essentially, as a factual matter, on Mr. Lewis's paternity, which Mr. Lewis admits, and, as a legal matter, on Section 413 of the Family Court Act and related caselaw. The statute provides that "the parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine." (Family Court Act § 413[a] [emphasis added].) In Albany Medical Center Hospital v. Johnston ( 102 AD2d 915 [3rd Dept 1984]), the Third Department held:
"[S]ection 413 of the Family Court Act places an affirmative obligation upon parents of a child under the age of 21 to support such a child by paying for expenses relating to 'care, maintenance and education'. This obligation includes payment of reasonable expenses of medical care required by the child . . . In the absence of proof that defendant's son was emancipated . . . or that defendant was unwilling or unable to pay for the medical services rendered, the statutory duty is absolute."( Id., at 916 [emphasis added]; see also Mary Imogene Bassett Hospital v. Dahlberg, 229 AD2d 781, 782 [3rd Dept 1996]; Radcliffe v. Hofstra University, 200 AD2d 562, 563 [2nd Dept 1994].)
Even in the absence of statute, "[t]he child is entitled to the support and maintenance by its father. If the father fails to support his child and furnish the necessaries to keep it alive, that is, fail and refuse to give it a home, food and clothing, education and medical attendance, these may be furnished by others, even a stranger to the family, and he will be held liable for it." ( Laumeier v. Laumeier, 237 NY 357, 364.)
Mr. Lewis argues that he is not obligated to pay Brookdale's bill, because he did not have legal custody of Anthony when the services were rendered. He provided no document to support his contention that Annie Lewis had legal custody of Anthony, other than the statement of Ms. Lewis that contradicts her sworn Answer In any event, legal custody or its absence does not determine the parent's duty. ( See Landes v. Landes, 1 NY2d 358, 365; Modica v. Thompson, 300 AD2d 662, 662-63 [2nd Dept 2002].)
That is not to say, however, that legal custody is irrelevant to a parent's obligation to compensate third-parties for support services rendered to the child, particularly when there is a court order or an agreement that delineates the parent's support obligation to the child. ( See Dutchess County Department of Social Services v. Day, 96 NY2d 149, 153-55; Felder v. Mohr, 39 NY2d 1002-03; Horne v. Horne, 22 NY2d 219, 222-23; Modica v. Thompson, 300 AD2d at 662-63.) "In the absence of an express contract or request, a stranger can hold the parent for necessaries furnished to his child only when the parent has failed or neglected to support the child or to make adequate provision for her maintenance." ( Michigan Sanitarium Benevolent Association v. Clayburgh, 145 Misc 403, 404 [City Ct, NY Count 1932].)
This Court can think of few areas of the law that are as imbued with public policy as the appropriate allocation of responsibility for the health care of a child. Although there is nothing in the record before this Court to suggest that the care Brookdale rendered to Anthony Norman was not fully appropriate or the fees billed not fully reasonable, there is nothing in the statute or caselaw that requires a court to defer, without regard to circumstances, to the opinion of every health care provider who renders service to a child in the absence of an agreement or request from the parent to be charged.
The complexity of the structures and costs for the delivery of health care services counsel against automatic deference as a general proposition. In this case, for example, Brookdale submitted on its motion for default judgment, and again in opposition to Mr. Lewis's motion, a copy of the bill generated for Anthony's care, on which appears the bold-faced statement, "benefits assigned to Brookdale Hospital", suggesting that Brookdale may have accepted assignment of no-fault benefits in satisfaction for the bill. That, of course, as well as the consequences of any diversion of payment of benefits by Mr. Lewis, would be an appropriate subject for trial.
This Court would not lightly relieve a parent of the duty to provide health care for a child, particularly if the parent's failure or inability to do so were the result of the parent's own illegal or irresponsible conduct. Again, whether that is the case here remains to be seen. For the present, the Court notes only that Mr. Lewis did not hesitate to acknowledge that Anthony Norman is his son, even though Brookdale submitted no admissible evidence on that, either on its motion for default judgment or on this motion.
The public policies implicated by the facts of this case, together with the "strong public policy in favor of resolving cases on their merits" ( see Goldman v. City of New York, 287 AD2d 482, 484 [2nd Dept 2001]; see also O'Loughlin v. Delisser, 15 AD3d at 373), are best served by allowing these issues to be resolved at trial.
Defendant Sean Lewis's motion to vacate the judgment entered against him on December 10, 1999 is granted as to him only, provided that he serve and file an answer together with a copy of this Decision and Order on Plaintiff, and file proof of service of the answer and this Order with the Court (Room 303) and the Judgment Clerk (Room 301) within twenty days of the date of this Order.
Upon compliance with these conditions, the judgment and all post judgment enforcement, including any income executions and restraints, shall be vacated without further order of the Court. Any monies or other assets that may have been collected in the enforcement of the judgment shall be returned to Mr. Lewis without further order of the Court.
The clerk shall place this action on the Part 11 calendar for trial upon receipt of the answer and Order with proof of service.
The judgment shall stand in full force and effect should Mr. Lewis fail to comply fully with the terms of this Order.