Opinion
Index No. CV-041842-01/BX
01-09-2023
CHASE MANHATTAN BANK USA, N.A., Plaintiff, v. Luis GRANT, Defendant.
In this consumer credit action, default judgment was entered for plaintiff against defendant on August 21, 2001, in the sum of $2,840.67. Plaintiff garnished defendant's income about nine (9) times, recovering a total of $822.23 between January 19, 2005, and March 22, 2005. In November 2022, defendant received the most recent garnishment notice from his bank.
Defendant now moves by order to show cause to vacate the default judgment. He asserts without explanation or elaboration that he was never served with the summons and complaint. Also, while he acknowledges having had a credit card account with plaintiff, he insists he does not owe plaintiff money.
In opposition, plaintiff argues that the judgment should not be vacated, because defendant has not established a reasonable excuse for his default or a meritorious defense. Plaintiff argues that it has established proper service of the summons and complaint on defendant; defendant has not sufficiently rebutted the presumption of service; and, in any event, he waived any defect in service by failing to timely move to vacate the default judgment despite having actual notice in late 2004 of the income execution. Additionally, plaintiff argues that its enforcement of the judgment is timely, because the applicable 20-year statute of limitation ( CPLR 211[b] ) was tolled through March 2025, by virtue of defendant's last payment in March 2005.
Discussion
To vacate a default judgment, a defendant "must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action" ( Eugene Di Lorenzo, Inc. v A.C. Dutton Lumber Co., Inc., 67 NY2d 138, 141 [1986] ; CPLR 5015[a] ).
The Court finds that defendant has failed to establish a reasonable excuse for failing to appear. The affidavit of plaintiff's process server is prima facie evidence of proper service, and defendant's conclusory denials of service, entirely devoid of any detail or explanation, are insufficient to rebut that presumption ( Perlbinder Holdings LLC v. Patel , 202 AD3d 578 [1st Dept 2022] ; Bank of America, N.A. v Budhan , 171 AD3d 622 [1st Dept 2019] ; Grinshpun v Borokhovich , 100 AD3d 551, 552 [1st Dept 2012], lv denied 21 NY3d 857 [2013] ).
In any event, because defendant's wages were garnished for a substantial period of time without him timely moving to vacate the judgment or challenging service of process, he is deemed to have acceded to the terms of the judgment and waived any defense based on lack of service ( Chase Bank USA, N.A. v Castelli , 61 Misc 3d 144 [A], *1 [App Term, First Dept 2018]; West 187 St. Assoc. Rojas , 37 Misc 3d 135[A], *1 [App Term, 1st Dept 2012] ; Platinum Recovery Servs., Inc. v Reid , 65 Misc 3d 153[A], *1-2 [App Term, 2d Dept 2019] ; Ford Motor Credit Company v Hooker , 62 Misc 3d 129 [A], *1 [App Term, 2d Dept 2018]).
Defendant has not established a meritorious defense to plaintiff's claim based on the statute of limitations. A money judgment generally is valid and enforceable for 20 years ( Gletzer v Harris , 12 NY3d 468, 473 [2009] ; C.T. Holdings, Ltd. v Schreiber Family Charitable Foundation, Inc. , 154 AD3d 433 [1st Dept 2017] ; CPLR 211[b] ). However, the statute of limitation may be tolled where the debtor acknowledges the debt or makes payment thereon, in which case the 20-year statute of limitation restarts from the date of the acknowledgment or payment ( CPLR 211[b] ; see First New York Bank for Business v Alexander , 106 AD3d 138, 141 [1st Dept 2013], lv denied 22 NY3d 857 [2013] [acknowledgment]; Nissim Y. v Commissioner of Social Services ex rel. Violet Y. , 77 AD3d 480, 480-81 [1st Dept 2010] [payment]). Here, the parties do not dispute that defendant made several payments against the debt in 2005, when his income was garnished, with the last payment occurring on March 22, 2005. As such, the 20-year statute of limitation applicable to the judgment restarted and does not expire until March 2025, rendering plaintiff's enforcement efforts timely ( Nissim Y. v Commissioner of Social Services ex rel. Violet Y. , 77 AD3d at 480-81 ; cf. Zielinski v Zielinski , 15 AD3d 575, 577 [2d Dept 2005] ["there is no evidence that the defendant made any payments [on the judgment] to extend the 20-year period of limitations under CPLR 211[b]"]).
Finally, defendant's self-serving, conclusory, and unsupported statement that he does not owe plaintiff money fails to establish a meritorious defense to this action.
Based upon all the foregoing, it is hereby
ORDERED that defendant's order to show cause to vacate the default judgment is DENIED and any stay of execution is lifted.
This constitutes the decision and order of the Court.