Opinion
CV-009951-20/QU
08-26-2020
Burton, Plaintiff(s), v. 110 Auto Body Repair Inc, Defendant(s).
Pro Se Plaintiff Defendant's Counsel: Law Firm of Stephen G. James & Associates, PLLC 87-66 Sutphin Blvd. Jamaica, New York 11435
Pro Se Plaintiff Defendant's Counsel: Law Firm of Stephen G. James & Associates, PLLC 87-66 Sutphin Blvd. Jamaica, New York 11435 Wendy Changyong Li, J.
The following papers were read on Defendant's order to show cause seeking various Reliefs (as defined below):
Papers Numbered
Defendant's Order to Show Cause signed on July 8, 2020 ("OSC") together with all supporting exhibits 1 Affidavit of Service dated as of July 10, 2020 indicating service of the OSC upon NYC Sheriff's Office 2 Affidavit of Service dated as of July 11, 2020 indicating service of the OSC upon Plaintiff 3 Notice of Appearance by the Law Firm of Stephen G. James & Associates, PLLC dated as of July 7, 2020 as well as Affidavit of Service of the Notice of Appearance upon Plaintiff dated as of July 13, 2020 4 Decision/Order dated as of July 2, 2020 ("July 2 Decision") rendered by a Queens County Civil Court Judge ("Decision Judge") 5 Decision Judge's Amended Decision/Order dated as of July 6, 2020 ("July 6 Amended Decision," together with the July 2 Decision, the "Default Judgement") 6 Plaintiff's Order to Show Cause signed by the Decision Judge dated as of June 26, 2020 ("Plaintiff OSC No. 4") together with all supporting exhibits 7 Plaintiff's Order to Show Cause denied by the Decision Judge dated as of July 9, 2020 ("Plaintiff OSC No. 5") together with all supporting exhibits 8 Plaintiff's denied Order to Show Cause dated as of July 10, 2020 ("Plaintiff OSC No. 6") together with all supporting exhibits 9
II. Background
A hearing ("Hearing") was conducted through Skype Business live video by this Court on July 30, 2020 in the Civil Court of the City of New York County of Queens ("court") on Defendant's OSC seeking the following reliefs ("Reliefs") through a court order: 1) to vacate the July 2 Decision; 2) to "grant Defendant an extension of time to respond to Plaintiff's Summons and Complaint;" 3) to grant "Defendant a money judgement against Plaintiff for the amount owed for repairs to the vehicle along with attorney fees, charges and costs;" and 4) to restore the case to the trial calendar (OSC at 1). Both pro se Plaintiff and Defendant (through its counsel) were physically present in Part CE courtroom of the court and have had the opportunity to present his/her/its own case and challenge the opposing party under oath. Defendant's witness was also present in court. This Court has considered all live testimonies and evidence presented by both parties during the Hearing and motion papers previously submitted by both parties. No opposition was filed by Plaintiff to Defendant's OSC.
III. Procedural History
According to Defendant's OSC Affirmation in Support, Plaintiff filed a lawsuit ("Prior Proceeding") against Defendant with separate index number of CV-041259-19/QU on December 3, 2019. According to court case summary ("Prior Proceeding Case Summary") for the Prior Proceeding, Plaintiff sued Defendant for "replevin" alleging that Defendant "fail[ed] to return property in the amount of $24,144.68 with interest from 11/18/19." Prior Proceeding Case Summary indicated that, on December 5, 2019, Plaintiff filed an order to show cause ("Plaintiff OSC No. 1"), which was denied due to non-appearance by Plaintiff. (Prior Proceeding Case Summary.) On January 8, 2020, Plaintiff filed another order to show cause ("Plaintiff OSC No. 2"), which was again denied by the same judge "without opposition" on January 10, 2020 due to the fact that "Plaintiff failed to present any proof of ownership of the vehicle or sufficient evidence to warrant a stay" (See Exhibit B of the OSC).
On June 17, 2020, Plaintiff filed the instant lawsuit under index number CV-009951-20/QU ("Instant Proceeding") against Defendant for "replevin" alleging that Defendant "fail[ed] to return property in the amount of $24,144.68" in connection with Plaintiff's "2014 Acura vehicle VIN JH4KC1F3XEC004407" ("Vehicle") (OSC Affirmation in Support at 1). Plaintiff allegedly served her summons and complaint upon Defendant on June 26, 2020 (See Affidavit of Service of Plaintiff OSC No. 4). Defendant had until July 16, 2020 to answer if it was personally served. On June 18, 2020, Plaintiff filed an order to show cause ("Plaintiff OSC No. 3") which was subsequently withdrawn. On June 26, 2020, Plaintiff filed the Plaintiff OSC No. 4 to "stay the sale or destruction of the [Vehicle]" (see Plaintiff OSC No. 4), which was signed by the Decision Judge and such matter was adjourned to July 2, 2020 for a hearing. Defendant failed to appear. On July 2, 2020, the Decision Judge rendered the July 2 Decision, which was subsequently amended by the Decision Judge, sua sponte, with the July 6 Amended Decision.
The July 2 Decision ordered that the Vehicle should " be returned forthwith by Defendant 110 Auto Body Repair Inc., and/or his agents [; and that] [a]ny mechanic's lien issued by Defendant [was] hereby lifted and vacated " (July 2 Decision at 1-2). The July 6 Amended Decision ordered that the Vehicle should "be returned forthwith by Defendant 110 Auto Body Repair Inc., and/or his agents [;] [a]ny mechanic's lien issued by Defendant [was] hereby lifted and vacated [; and that] [t]he Sherriff/Marshall [was] authorized to seize the subject vehicle from Defendant or any agent of the Defendant holding the vehicle and immediately return it to the Plaintiff" (July 6 Amended Decision at 1-2). In summary, the Default Judgement ordered the return of the Vehicle to Plaintiff by Defendant either voluntarily or by enforcement and vacated the mechanic's lien imposed on the Vehicle by Defendant.
On July 7, 2020, Defendant filed an order to show cause ("Defendant OSC No. 1") seeking an order: 1) to vacate the July 2 Decision; 2) to grant "Defendant a money judgement against Plaintiff for the amount owed for repairs to the vehicle along with attorney fees, charges and costs;" and 3) to restore the case to the trial calendar (Defendant OSC No. 1 at 1). The Decision Judge denied Defendant OSC No. 1 for improper form. On July 8, 2020, Defendant filed the OSC, which was signed by the Decision Judge, and the matter was adjourned to July 16, 2020 for a hearing ("July 16 Hearing").
On July 9, 2020, Plaintiff filed Plaintiff OSC No. 5 seeking the court to "enforce order dated 7/6/2020 and lift stay dated 7/8/2020" (Plaintiff OSC No. 5 at 1). The Decision Judge denied Plaintiff OSC No. 5 and referred the case to the July 16 Hearing. On July 10, 2020, Plaintiff filed Plaintiff OSC No. 6 requesting "court to enforce order dated 7/6/2020 and lift the stay issued on 7/8/2020" (Plaintiff OSC No.6 at 1). A judge denied Plaintiff OSC No. 6 and again referred the case to the July 16 Hearing.
Pursuant to court case summary ("Case Summary") for the Instant Proceeding and the testimonies from both parties during the Hearing, the July 16 Hearing was conducted by another judge on July 16, 2020. The matter was further adjourned to July 30, 2020 for Plaintiff to file her opposition to the OSC pursuant to such judge. This matter is now before this Court. No opposition has been filed by Plaintiff as of July 30, 2020, the date of the Hearing.
During the Hearing conducted by this Court on July 30, 2020, Plaintiff stated: 1) that she dropped the Vehicle at Defendant's place of business for a free estimate, and upon returning to the repair shop the next day, found the door was closed; 2) that she saw the Vehicle was being repaired the next time she went to the shop; and 3) that she did not authorize the repairs. Plaintiff further requested that this Court enforce the default judgement and direct the return of the Vehicle. In response, Defendant argued: 1) that the Vehicle was repaired; 2) that the insurance company adjuster went to Defendant's shop for inspection of the Vehicle; 3) that the insurance company previously issued a payment check to both Plaintiff and Defendant ("Two-Party Check"); 4) that Plaintiff cancelled the Two-Party Check and instructed the insurance company to issue an one-party check ("One-Party Check") to Plaintiff only; 5) that Plaintiff cashed the One-Party Check; 6) that Plaintiff tried to renegotiate the repair price but Defendant refused; 7) that it only asked for the payment for the repairs made to the Vehicle; 8) that it obtained a mechanic's lien on the Vehicle; and 9) that this case was never tried on its merits. When asked the whereabouts of the Vehicle, Defendant responded that it was still at Defendant's shop. Defendant further requested that this Court vacate the default judgement and restore the case to the calendar so that the case could be decided on its merits.
IV. Discussion
In its OSC, Defendant presented various factual matters and prayed for Reliefs; however, it failed to raise any legal argument as to why this Court should grant the Reliefs requested. In the interest of justice, this Court will address the legal issues de novo.
1. Jurisdiction of this Court
According to court Papers 2-4, Defendant's OSC was served on Plaintiff and Plaintiff personally appeared at the Hearing. Reliefs sought by the OSC are within the subject matter jurisdiction of the court. CPLR 2221, Motion Affecting Prior Order, states that "(a) [a] motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that if the order was made upon a default such motion may be made, on notice, to any judge of the court " (CPLR 2221 [a][1]). Defendant's OSC sought to vacate the July 2 Decision which was rendered on default. Pursuant to CPLR 2221, this Court has the jurisdiction to hear, consider and rule on the OSC. 2. Subject Matter Jurisdiction of Civil Court over Instant Proceeding and Plaintiff OSC No. 4
Plaintiff OSC No. 4 sought to "stay the sale or destruction of property" (Plaintiff OSC No. 4 at 1). It is unclear from the face of the Plaintiff OSC No. 4 which kind of property Plaintiff was referring to. However, Plaintiff OSC No. 4 affidavit signed by Plaintiff stated that "[she] did not give authorization to the repair shop [and she] just needed a free estimate; [that she] did not give verbal or written permission; [that] [t]he repair shop [had] been holding the car for 8 months and there [was] a lien; [that she had been] pay[ing a] car note of [$]645.95 monthly and [she had been] liv[ing] in the State of Virginia; [and that she had] attached all proof of ownership [of the car]." Based on the copy of the car ownership proof, it appears that the "property" referred to in Plaintiff OSC No. 4 was the Vehicle with a mechanic's lien. As a result, Plaintiff OSC No. 4 essentially sought a stay of a mechanic's lien sale.
Although no party has challenged the subject matter jurisdiction of Plaintiff OSC No. 4, this Court must address this issue in order to decide on Defendant's motion seeking to vacate the default judgement rendered upon Plaintiff OSC No. 4, "since any judgement rendered without subject matter jurisdiction would be void ab initio" (Maloney v Rincon, 153 Misc 2d 162, 581 NYS2d 120 [1992]) and the subject matter jurisdiction, "unlike personal jurisdiction, cannot be waived by a party's failure to object" (Maloney v Rincon at 163, citing Gager v White, 53 NY2d 475, 485).
NY Constitution, article VI, § 15 states that the Civil Court of the City of New York has "jurisdiction over actions and proceedings for the recovery of chattels and actions and proceedings for the foreclosure of mechanics liens and liens on personal property where the amount sought to be recovered or the value of the property does not exceed twenty-five thousand dollars exclusive of interest and costs..." (NY Const, art VI, § 15[b]). New York Lien Law provides that an owner of a chattel "may commence a special proceeding to determine the validity of the lien[;] [and that] [t]he special proceeding may be brought in any court which would have jurisdiction to render a judgment for a sum equal to the amount of the lien..." (NY Lien Law § 201-a). Clearly, the court has subject matter jurisdiction over the Instant Proceeding, where Plaintiff sought a return of the Vehicle valued under $25,000. Further, the court would have had the subject matter jurisdiction over a special proceeding to determine the validity of the lien placed on the Vehicle if such special proceeding were commenced in the court (Maloney v Rincon at 163). Here, Plaintiff did not initiate the special proceeding for a determination of the validity of the mechanic's lien imposed on the Vehicle, but instead moved to stay the sale of the mechanic's lien. Thus, this Court was left to determine the court's subject matter jurisdiction over Plaintiff OSC No. 4, where an order to stay a lien sale was prayed for.
As the court in Maloney v Rincon states, there is a "statutory gap" in terms of whether "the Civil Court [has] the subject matter jurisdiction to enjoin a lien sale" (Maloney v Rincon at 163). Although higher courts are silent on this issue, most Civil Courts of the City of New York believe, after legislative intent and history were investigated, that they lack the power to grant "preliminary injunctive relief" staying a mechanic's lien sale (Maloney v Rincon at 164, cited by Mobile Woods Ambulette Trans. Corp. v E-Z Parking Mgmt., 2003 NYLJ Lexis 2702; Mongelli v. Cabral, 632 NYS2d 927; Hollyer v Leacock, 1994 NYLJ Lexis 9383). Here, Plaintiff OSC No. 4 moved to stay the sale of a lien; thus, Plaintiff was essentially requesting the court to issue an injunction order or restraining order to stop the sale of the lien.
It is a well-established principle that "[t]he Civil Court of the City of New York is a court of limited jurisdiction, having no general equity jurisdiction except as specifically provided by law" (W.H.P. 20, Inc. v. Oktagon Corp., 251 AD2d 58, 673 NYS2d 691, citing Kwoczka v Dry Dock Sav. Bank, 275 NYS2d 156). Although New York City Civil Court Act § 203 provides New York City Civil Courts with the power to establish, enforce or foreclose mechanic's lien filed upon a real property if the value of the mechanic's lien does not exceed $25,000 (NY City Civ Ct Act § 203[e]), here, the Vehicle is not a real property; therefore, New York City Civil Court Act §203 does not apply. In addition, pursuant to New York Lien Law § 19, "[an] owner [of a property] or any other party in interest may apply to the supreme court of this state, or to any justice thereof in which the notice of lien is filed, for an order summarily discharging of record the alleged lien" (NY Lien Law § 19, emphasis added).
New York City Civil Court Act § 209 provides the Civil Court with the power to issue orders "of attachment or of arrest, a warrant to seize a chattel as provided in § 207 of the lien law, and an order of seizure of a chattel" (NY City Civ Ct Act § 209 [a]). However, it provides the Civil Court with no power to issue an "injunction or restraining order" (NY City Civ Ct Act § 209 [b]) unless "pursuant to [CPLR] 7102 (d) [order of seizure], CPLR 7103(c) [returning chattel in custody of sheriff] and CPLR 7109 [unique chattel]" (NY City Civ Ct Act § 209 [b] [1]; Mobile Woods Ambulette Tran. Corp. v E-Z Parking Mgmt., 2003 NYLJ Lexis 2702). "Thus, pursuant to CCA 209(b)(1) [i.e. New York City Civil Court Act § 209 (b) (1)], in order for Civil Court to grant a stay, plaintiff had to have moved for an order of seizure pursuant to CPLR 7102(d) and by implication, met all its requirements" (Mobile Woods Ambulette Tran. Corp. v E-Z Parking Mgmt. at 5). Here in the Instant Proceeding, Plaintiff did not move for an order of seizure from the court; instead, Plaintiff OSC No. 4 only prayed for a stay of the lien sale. As a result, the court does not have subject matter jurisdiction over Plaintiff OSC No. 4; therefore, the Default Judgement rendered upon Plaintiff OSC No. 4 is "void ab initio" (Maloney v Rincon at 163).
3 Standards for Vacatur
Even if the Default Judgement was not void, though it is here, or if the court had subject matter jurisdiction over Plaintiff OSC No. 4, though it does not in the instant matter, 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]).
4. Excusable Default
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 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404 or 4. lack of jurisdiction to render the judgement or order " [CPLR 5015 (a)]. Here, the OSC was made within one year of a default judgement pursuant to CPLR 317 seeking the vacatur of such default judgement. Defendant argued that "Mary [XXX], the president of the [D]efendant, which [was] actually a corporation, who up to [July 2, 2020] was not aware that the Defendant was required to be represented by counsel failed to appear in court as she felt that she had signs of the Covid-19 and spent the day at her doctor's office (see Exhibit D)" (OSC Affirmation in Support at 2). Plaintiff challenged such doctor's note under such Exhibit D during the Hearing stating that the "date of the note" was changed.
It is noted, however, that court paper 7, the Affidavit of Service in support of Plaintiff OSC No. 4, indicated that the "Summons with Endorsed Complaint [was delivered] to Louis known to be the owner of the [Defendant]" on June 26, 2020 (Plaintiff OSC No. 4 Affidavit of Service), without any references to Plaintiff OSC No. 4 having been served upon Defendant. Plaintiff did not introduce evidence during the Hearing that Plaintiff OSC No. 4 was indeed served upon Defendant.
5. Meritorious Defense
In the Instant Proceeding, Plaintiff sued for "replevin" for the return of the Vehicle arguing that "she did not authorize the repairs [of the Vehicle by Defendant], and therefore she [did] not owe any money to Defendant" (July 2 Decision at 1). In its OSC Affirmation in Support, Defendant argued: 1) that the Vehicle "was damaged in an accident and was referred to Defendant for repairs after adjustment by the insurance company;" 2) that "upon completion of the repairs and demand for payment the insurance company issued a two party check to Defendant and Plaintiff;" 3) that "Plaintiff refused to endorse the two party check and demanded that the check be issued solely in her name;" and 4) that "[u]pon receipt of the check solely in her name Plaintiff thereafter attempted to negotiate with Defendant to reduce it's price for services rendered in the repair of the vehicle [where] Defendant refused " (OSC Affirmation in Support at 1-2).
During the Hearing, Plaintiff restated that she did not give the authorization to Defendant to repair her car and requested this Court to enforce the default judgement. In response, Defendant argued that the Vehicle was repaired; that the insurance company went to Defendant's repair shop to inspect the Vehicle; that Plaintiff had received the insurance company payment check in her name only and cashed it; that Plaintiff tried to renegotiate the repair price but Defendant refused; that it simply asked for the payment for the repairs made to the Vehicle; and that it obtained a mechanic's lien on the Vehicle. Defendant further requested that this Court vacate the default judgement and restore the case to the trial calendar so that the case could be decided on its merits.
Based on the fact finding, this Court finds that Defendant has a potential meritorious defense in the instant matter (Newell v Hirsch, 65 AD3d 1108 [2d Dept 2009]; Katz v. Marra, 74 AD3d 888, 890 [2d Dept 2010]).
V. Decisions
Defendant sought the following Reliefs in its OSC: 1) to vacate the July 2 Decision; 2) to "grant Defendant an extension of time to respond to Plaintiff's Summons and Complaint;" 3) to grant "Defendant a money judgement against Plaintiff for the amount owed for repairs to the vehicle along with attorney fees, charges and costs;" and 4) to restore the case to the trial calendar (OSC at 1). During the Hearing, Defendant further requested that this Court vacate the default judgement, while Plaintiff sought the enforcement of the default judgement.
1. Defendant's written motion to vacate the July 2 Decision is denied as moot.
In its OSC, Defendant sought to vacate the July 2 Decision. Here, the July 2 Decision was amended by the July 6 Amended Decision, which was rendered sua sponte; therefore, Defendant's written motion to vacate the July 2 Decision is denied as moot without prejudice.
2. Defendant's oral motion to vacate the default judgement is granted. Defendant orally moved to vacate the default judgement during the Hearing. New York courts traditionally favor resolving matters on their merits (Allen v Preston, 123 AD2d 303, 304 [2d Dept 1986], Gerdes v. Canales, 74 AD3d 1017, 1017 [2d Dept 2010]), though the decision to vacate a default judgement is often left to the sound discretion of the court (U.S. Bank N.A. v. Slavinski, 78 AD3d 1167, 1168 [2d Dept 2010]). Here, Defendant moved to vacate a default judgement within one year of the entry of such default judgement pursuant to CPLR 317; Defendant has meritorious defense; the court lacks subject matter jurisdiction over Plaintiff OSC No. 4; and the Default Judgment was rendered upon Plaintiff OSC No. 4. In the interest of justice, Defendant's oral motion to vacate the default judgement is granted pursuant to CPLR 5015 (a) and 317. The Default Judgement is vacated.
3. Plaintiff's oral motion to enforce the default judgement is denied.
During the Hearing, Plaintiff again orally moved to enforce the default judgement. Here, the court lacks subject matter jurisdiction over Plaintiff OSC No. 4. As a result, the default judgement rendered upon Plaintiff OSC No. 4 is "void ab initio" (Maloney v Rincon at 163). Plaintiff's motion to enforce the default judgement is denied with prejudice.
4. Defendant's motion for extension of time is granted.
In its OSC, Defendant sought an order granting "Defendant an extension of time to respond to Plaintiff's Summons and Complaint" (OSC at 1). In the Instant Proceeding, the Default Judgement was rendered before Defendant had an opportunity to answer Plaintiff's summons and complaint within the time frame provided by law. Here, this Court finds for Defendant and Defendant's motion for extension of time is granted. Defendant shall have twenty (20) days of the entry of this Decision and Order to answer Plaintiff's summons and complaint.
5. Defendant's motion for money judgement is denied without prejudice pending trial.
In its OSC, Defendant prayed for a "money judgement against Plaintiff for the amount owed for repairs to the vehicle along with attorney fees, charges and costs" (OSC at 1). It is noted that Defendant's entitlement to a money judgement for repairs made to the Vehicle must be decided pending trial. Therefore, Defendant's motion for a money judgement is denied without prejudice.
6. Defendant's motion for restoration of the case is granted.
In its OSC, Defendant sought an order to restore the case to the trial calendar (OSC at 1). It is noted however, that the Default Judgement was rendered on Plaintiff OSC No. 4, which prayed for a "stay of sale or destruction of" the Vehicle (Plaintiff OSC No. 4). The Default Judgement does not adjudicate the Instant Proceeding, as when the Default Judgement was rendered, the time for Defendant to answer Plaintiff's summons and complaint had yet to be expired. As a result, the Instant Proceeding has not yet been concluded and is still alive. For the purpose of clarification, this Court grants Defendant's motion to restore the case to the calendar so that this matter can be decided on its merits.
7. Judicial Efficiency
"Pursuant to CPLR 3211 (a) (4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same" (JP Morgan Chase Bank, N.A., v Luxama, 172 AD3d 1341, 102 NYS3d 238 [2019], citing Dec v BFM Realty, LLC, 153 AD3d 497, 497, 59 NYS3d 453 [2017] [internal quotation marks omitted]; see Whitney v Whitney, 57 NY2d 731, 732, 440 NE2d 1324, 454 NYS2d 977 [1982]). In addition, pursuant to CPLR 602, "[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay" (CPLR 602[a]).
Here, the Prior Proceeding and the Instant Proceeding concern the same plaintiff, same defendant and same cause of action. Plaintiff initiated the Prior Proceeding on December 13, 2019. Defendant never answered Plaintiff's summons and complaint in the Prior Proceeding. Although Plaintiff OSC No. 2 in the Prior Proceeding was denied, the Prior Proceeding was never dismissed or marked off the calendar. Plaintiff initiated the Instant Proceeding on June 17, 2020 and has filed four (4) separate orders to show cause. Defendant has not yet answered the summons and complaint in the Instant Proceeding and has filed two (2) orders to show cause. Although there was a Default Judgement rendered upon Plaintiff OSC No. 4, the Instant Proceeding is still alive.
Since no motion has been made by either party concerning these two concurrent proceedings, this Court will not address this issue sua sponte (Lazich v Vittoria & Parker, 196 AD2d 526, 601 NYS2d 492 [App Div 2d Dept 1993], app denied, 82 NY2d 656, 602 NYS2d 805, 622 NE2d 306 [Ct App 1993]).
VI. Order
Accordingly, it is
ORDERED that the Default Judgment is vacated, and it is further
ORDERED that Plaintiff's motion to enforce the Default Judgement is denied with prejudice, and it is further
ORDERED that within twenty (20) days from the date of this Decision and Order with notice of entry, Defendant shall serve and file an answer to Plaintiff's summons and complaint, and it is further
ORDERED that, for the purpose of clarification, the pro se clerk shall restore this matter under index number CV-009951-20/QU to the trial calendar and notify both sides of the next court day.
This court reminds all parties that the existence of two concurrent proceedings affecting the same plaintiff, same defendant and same cause of action is not in compliance with the principal of judicial efficiency, and that the validity of the mechanic's lien has not yet been determined. Defendant is on notice that if it is decided after due process that Defendant does not have the right to possess or sell the Vehicle, Defendant may be found liable pursuant to relevant laws.
This constitutes the DECISION and ORDER of the Court. Dated: August 26, 2020 Queens County Civil Court __________ Honorable "WENDY" CHANGYONG Li, J.C.C.
This Court is very grateful for the assistance accorded by summer judicial interns Elizabeth R. Huang and Annie Tan.