Opinion
No. 2371/10.
2012-10-22
CADLEROCK JOINT VENTURE, LP, Plaintiff, v. Marcus KIERSTEDT, Defendant.
Steven Giordano, Esq, Vlock & Associates, P.C., for Plaintiff. Marcus Kiersted, Pro se.
Steven Giordano, Esq, Vlock & Associates, P.C., for Plaintiff. Marcus Kiersted, Pro se.
YVONNE LEWIS, J.
The defendant, pro se, Marcus Kierstedt, moved this court by order to show cause to vacate the default judgment, restore this case to calender, and remove the garnishment of his wages. The plaintiff, Cadlerock Joint Venture, L.P. had obtained a judgement for $162,447.02 and had executed a garnishment upon Mr. kierstedt's wages. Mr. Kierstedt stated in his affirmation in support of his order to show cause that, “I was never properly served pursuant to the civil procedure rules. I never had an opportunity to be heard. There was never a notice or summons and complaint affixed to my door or in the mail. I only became aware of the judgment once my wages were about to be garnished....” Cadlerock, by its attorney, counters that Mr. Kierstedt “a) Was duly served with process pursuant to CPLR § 308(4); b) Failed to raise a question of fact as to the service because he does not dispute any of the facts contained in the Affidavit of Service[;] c) Failed to meet his burden pursuant to CPLR § 5015 because he failed to raise any defense, much less a meritorious defefense; and d) Consented to the Court's jurisdiction and waived any personal jurisdiction defense because he was aware of the Judgment for a significant period of time and failed to assert his defense in a timely fashion.” Cadlerock also avers that “while on notice of the Judgment and with an Income Execution pending, Defendant agreed [to] work out an arrangement with Plaintiff to make monthly payments against the Judgment.” A Traverse Hearing was ordered to determine whether service of the summons and complaint were served upon the defendant.
The plaintiff's process server, Mr. Gerard Scully, testified that he “attempted to serve Marcus Kierstedt at 173 Pulaski Street ....“ on February 24th, 25th, 26th and 27th of 2010; on Saturday, February 27, 2010 at 10:12 AM he “affixed a copy of the summons and complaint to the black metal door ...” and on March 1, ... “mailed a copy to Marcus Kierstedt at 173 Pulaski Street, Brooklyn, New York, and an envelope marked personal and confidential.” Mr. Scully testified that he kept a log book, as required, and he had his log with him. He also testified that he made notes with regard to each of the attempted services. The notes that he referred were made on a request for service produced by and on the stationary of Alstate Process Service Inc.; the document was called a work ticket. In addition, Mr. Scully avowed that he spoke to a neighbor at 171 Pulaski Street from whom he learned “that Mr. Kierstedt did live at 173 Pulaski Street.”
Mr. Kierstedt testified, in part, as follows: “I'd like to explain. I didn't get any kind of notice until I was served with the judgment and the garnishment ... I move out of there.... I left my parents there ....beginning 09, 08.... I haven't received anything, to my knowledge. I asked my parents about it. Both of them told me they didn't receive anything.” Mr. Kierstedt testified that he had conversations with a representative of Cadlerock to clear up the problem with the payments for 173 Pulaski Street. Mr. Kierstedt also testified that he never gave Cadlerock, nor any representative of theirs, his residence address at 154 Hancock St. Mr. Kierstedt had a post office box address on his driver's license and he gave the post office box address to Cadlerock.
Service of Process
Cadlerock's process server's log book indicates that on Saturday, February 27, 2010 at 10:12 AM he “nail” a copy of the summons and complaint for this action at 173 Pulaski Street. But the log book does not reflect any of the attempted services to which he testified. The three other attempts are reflected on the work ticket issued by his employer. The lack of listing the attempts in the log book is pertinent because it alone can show the actually timeliness and progression of due diligence when making the record for “substituted” or “nail and mail service. The work ticket evidenced in this matter shows the attempts in random order and suggest they were added to give the appearance of actual due diligence. There was not testimony which explained this deviation from verifiable practice to show that due diligence actually occurred. The process server was not credible in his testimony of due diligence since he failed to put his attempts in the log book. Prudent professional servers put all of their attempts at service in their log book where a chronology can easily and clearly be established.
The process server also stated that he could not recall whether he spoke to a male or female when he elicited information from a neighbor at 171 Pulaski with regard to whether the defendant lived at 173. This is illuminating because there are check-off spaces on the work ticket and on the affidavit of service where the description could have been set forth and in light of the fact that he recalled that the person told him that he or she did not know Mr. Kierstedt's business address.
Waver of objection to personal jurisdiction
Cadlerock implores this court to find that the defendant has consented to the judgment herein and that therefor has waived any objection to the court's jurisdiction over him. “Plaintiff argues that in appropriate circumstance defendant may be deemed to have waived her jurisdictional objections, but such circumstances are not present her. Plaintiff's reliance on Cadlerock Joint Ventures, v. Mitiku 45 AD3d 452, 848 N.Y.S.2d [2007] and Lomando v. Duncan, 257 A.D.2d 649, 684 N.Y.S. 569 [1999] is misplaced, as the defendants in those cases either explicitly or implicitly participated in the action, thus acknowledging the validity of the judgment, or demonstrated a lack of good faith or delay in asserting their rights” (HSBC Bank USA v. A & R Trucking Co., Inc. 66 A.D.3d 606, 887 N.Y.S. 581[1st Dept., 2009].) In the instant case, the defendant made payments when he became aware that Cadlerock was the assignee of his loan and had not gotten payments due it, not because of the judgement. He addressed the garnishment of his wages right away and had apparently been making payments. While this Court notes that it is possible that Mr. Kierstedt had become aware of the judgment by means other than the service of process, “[when the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents.” Raschel v. Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 234,22,24 [1986]. See also Feinstein v. Bergner, 48 N.Y.2d 234, 241, 422 N.Y.S.2d 356, 359–60 [1979].
This action is dismissed for lack of impersonam jurisdiction. The default judgment is vacated. This is the decision and order of the Court.