Opinion
No. 56695.
07-14-2016
CREDITONE, LLC, Plaintiff, v. Ray C. WILSON, Defendant.
Lacy Katzen LLP, Rochester (Mark H. Stein of counsel), for plaintiff. Law Office of Abel L. Pierre, PC, New York City (Abel Pierre of counsel), for defendant.
Lacy Katzen LLP, Rochester (Mark H. Stein of counsel), for plaintiff.
Law Office of Abel L. Pierre, PC, New York City (Abel Pierre of counsel), for defendant.
ROBERT J. MULLER, J.
Plaintiff commenced this debt collection action by the filing of a summons and complaint on December 27, 2011. Defendant was then served via personal service at his actual place of abode on January 7, 2012 (see CPLR 308[1] ), with the affidavit of service filed on January 17, 2012. Defendant subsequently failed to appear and, on April 30, 2012, plaintiff obtained a default judgment against him in the amount of $11,680.68. Presently before the Court is defendant's motion by Order to Show Cause to vacate this default judgment.
Pursuant to CPLR 5015(a)(4), “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of ... lack of jurisdiction to render the judgment or order.”
Here, defendant contends that “[he] was absolutely never served with any legal documents whatsoever, most importantly, a summons and complaint.” Specifically, defendant contends that while the process server indicates that he was served at the Nassau Motel, 1881 State Route, Lake George, New York 12845, on January 7, 2012 at 10:40 A.M., “at [that] time and date [he] was not present or nowhere [sic] near [that] address.” Defendant further contends that while the process server provides a description of him, he “do[es] not know how or where the process server could have gotten such description of [him], as he never served [him] with any documents and he never spoke to [him]” [Wilson Affidavit, at ¶ 6]. According to defendant, “[he] did not learn about this litigation until recently, when [he] reviewed [his] credit report and noticed the judgment listed as a public record.”
The “affidavit of service constitute[s] prima facie evidence that defendant was properly served with process in accordance with CPLR 308(1) ” (TD Banknorth, N.A. v. Olsen, 112 AD3d 1169, 1170 [2013] ; see Citimortgage, Inc. v. Bustamante, 107 AD3d 752, 753 [2013] ; Bank of N.Y. v. Samuels, 107 AD3d 653, 653 [2013] ; Kurlander v. Willie, 45 AD3d 1006, 1007 [2007] ). “Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits” (Bank of N.Y. v. Samuels, 107 AD3d at 653 [citations and internal quotation marks omitted]; see Citimortgage, Inc. v. Bustamante, 107 AD3d at 753 ; Kurlander v. Willie, 45 AD3d at 1007 ).
The Court finds that defendant has failed to rebut the presumption of proper service created by the process server's sworn affidavit (Citimortgage, Inc. v. Bustamante, 107 AD3d at 753 ; Bank of N.Y. v. Samuels, 107 AD3d at 653 ; Kurlander v. Willie, 45 AD3d at 1007 ). Although defendant denies being at the Nassau Motel—which he owns and operates—on January 7, 2012 at 10:40 A.M., he fails to indicate where he was at that time. Indeed, defendant offers nothing more than conclusory denials of service. Plaintiff has also submitted proof that defendant signed for an information subpoena in this matter on December 4, 2013, thus contradicting his contention that he did not learn of the default judgment until recently when he reviewed his credit report.
To the extent not specifically addressed herein, defendant's remaining contentions have been examined and found to be without merit.
Based upon the foregoing, defendant's motion to vacate the default judgment is denied in its entirety.
Therefore, having considered the Affidavit of Ray C. Wilson a/k/a Raymond Wilson, sworn to February 2, 2016, submitted in support of the motion; Affirmation of Abel L. Pierre, Esq. with exhibits attached thereto, dated February 2, 2016, submitted in support of the motion; and Affirmation of Mark H. Stein, Esq. with exhibits attached thereto, submitted in opposition to the motion, it is hereby
ORDERED that defendant's motion to vacate the default judgment is denied in its entirety.
The original of this Decision and Order has been filed by the Court together with the submissions enumerated above. Plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon defendant in accordance with CPLR 5513.