Opinion
No. 2022-371 K C
03-03-2023
Capital Equity Management, LLC, Respondent, v. Raphael Dema, Appellant.
Camba Legal Services, Inc. (Marisa-Lyn Menna and Matthew Schedler of counsel), for appellant. Law Office of Daniel Sully (Daniel E. Sully of counsel), for respondent.
Unpublished Opinion
MOTION DECISION
Camba Legal Services, Inc. (Marisa-Lyn Menna and Matthew Schedler of counsel), for appellant.
Law Office of Daniel Sully (Daniel E. Sully of counsel), for respondent.
PRESENT:: CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, LOURDES M. VENTURA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered October 29, 2019. The order denied defendant's motion to vacate a judgment entered upon defendant's failure to appear or answer the complaint, and, in effect, upon such vacatur, to dismiss the complaint or, in the alternative, to restore the matter to the calendar.
ORDERED that the order is reversed, without costs, the branch of defendant's motion seeking to vacate the default judgment on the ground of a lack of jurisdiction is granted and the complaint is dismissed.
In this action to recover the sum of $13,396.22 for breach of a credit card agreement, the affidavit of the process server stated that, after three prior attempts to personally serve defendant, the summons and complaint were served on defendant pursuant to CPLR 308 (4) on May 4, 2009, at 1:55 p.m., by affixing a copy thereof on the apartment door at defendant's address on Flatlands Avenue in Brooklyn, and mailing a copy to the same address the next day.
Defendant did not answer or appear in this action and a default judgment was entered against him on August 21, 2009. Nine years later, in November 2018, defendant, pro se, moved to, among other things, vacate the default judgment, stating in his affidavit in support that he had not been served in this action and he had not known about this action until September 2018 when he received a copy of an action upon judgment (see CPLR 5014). In a supplemental affidavit in support, defendant averred that he was unable to review the affidavit of service at the time he filed his motion because the court file for this action was unavailable. Defendant stated that, after having the opportunity to review the affidavit of service annexed to plaintiff's affirmation in opposition, he learned that he had not been properly served with the summons and complaint as he lived in Nigeria at the time of the alleged service. He supported this allegation with documentary evidence and submitted additional documentation with a second supplemental affidavit. Defendant argued that the court "must vacate a default judgment and dismiss the action where it finds that the defendant was not served as required by CPLR 308" (see CPLR 5015 [a] [4]), or, in the alternative, that the default judgment be vacated on the ground that his default had been excusable and that he had a meritorious defense (see CPLR 5015 [a] [1]). By order entered October 29, 2019, the Civil Court denied defendant's motion.
As an initial matter, we find that the Civil Court did not improvidently exercise its discretion in considering defendant's supplemental affidavits(see Advisory Notice 17: Unavailable files in Consumer Debt cases, April 23, 2015, Civ Ct of City of NY) and, ultimately, plaintiff was not prejudiced as it was afforded the opportunity to, and indeed did, submit replies to the supplemental affidavits (see U.S. Bank Trust, N.A. v Rudick, 156 A.D.3d 841 [2017]).
Where service of process is effectuated pursuant to CPLR 308 (4), the plaintiff must demonstrate that the summons was affixed to the door of either, as relevant here, the dwelling place or usual place of abode of the person to be served (see CPLR 308 [4]; Feinstein v Bergner, 48 N.Y.2d 234 [1979]). Generally, a process server's affidavit of service establishes a rebuttable presumption of service in the manner described (see Deutsche Bank Natl. Trust Co. v Patisso, 193 A.D.3d 814 [2021]; Federal Natl. Mtge. Assn. v Castoldi, 187 A.D.3d 988 [2020]). Here, in support of his motion, defendant submitted unrebutted documentary proof that he had relocated to Nigeria and resided there when service was purportedly made, and, therefore, that he was not served at his dwelling place or usual place of abode. As defendant has demonstrated that jurisdiction was never obtained over him, the Civil Court should have granted defendant's motion.
Accordingly, the order is reversed, the branch of defendant's motion seeking to vacate the default judgment on the ground of a lack of jurisdiction is granted and the complaint is dismissed.
BUGGS, J.P., and OTTLEY, J., concur. VENTURA, J., taking no part.