Opinion
608613/19
01-29-2020
EXECUTIVE FLITEWAYS, INC., Plaintiff, v. Alex C. MURTA, Defendant.
Alex C. Murta, pro se Richard Auerbach, Esq., McBreen & Kopko, 366 North Broadway Suite 400, Jericho, New York 11753
Alex C. Murta, pro se
Richard Auerbach, Esq., McBreen & Kopko, 366 North Broadway Suite 400, Jericho, New York 11753
Carmen Victoria St. George, J.
The following electronically-filed papers were read upon this motion:
Notice of Motion/Order to Show Cause 17-18, 29
Answering Papers 19-26
Reply
Briefs: Plaintiff's/Petitioner's
Defendant's/Respondent's
Defendant, appearing pro se , seeks to vacate the default money judgment entered against him by the Suffolk County Clerk on August 30, 2019, upon application of the plaintiff, Executive Fliteways. Plaintiff, Executive Fliteways, Inc. (EFI), opposes the requested relief.
Plaintiff, a private jet charter and aircraft management services company, hired the defendant and trained him as a pilot pursuant to a written agreement that provides, inter alia , that if the defendant's employment is terminated within twelve months after training is complete, the defendant owes plaintiff the sum of $18,000.00. The written agreement sets forth a sliding scale of reimbursement whereby the amount to be reimbursed to plaintiff decreases as the twelve-month period comes to a close. Plaintiff alleges that the defendant "unilaterally left EFI less than three (3) months after the defendant completed his training."
The affidavit of service annexed to the defendant's papers, which is also electronically filed on NYSCEF as Document No.7, demonstrates that he was served pursuant to CPLR § 308 (4) on May 28, 2019, at 6:43 p.m., at 34-51 10th Street, Apartment 3, Astoria, New York, by affixing the summons and verified complaint to the door of defendant's usual place of abode. Two prior attempts at service were made, one on May 22, 2019 at 2:21 p.m. and the other on May 25, 2019, at 11:59 p.m.
Defendant claims that the judgment should be vacated because he "was not properly served," having allegedly been served at his "old address." Defendant further claims that, when he "stopped by" his "old address" to pick up an Amazon product that he ordered "to [the] wrong address," he "saw the letter on top of the mailbox." He states that he was not aware of the judgment until then; however, the defendant does not state on what date he "stopped by" his "old address" and discovered "the letter." Moreover, the defendant does not annex a copy of the "letter" that he purportedly saw on top of the mailbox. The defendant adds that plaintiff "never contacted [him] to get an updated address."
Although the pro se defendant in this case does not cite to either CPLR § 317 or § 5015 in support of his motion, under either statute, the defendant's application is denied.
"When process is served by some method other than personal delivery..., the possibility exists that the defendant will not actually receive it... Even with a mailing plus delivery ( CPLR 308(2) ) or affixation to the defendant's front door ( CPLR 308 (4) ), circumstances may arise in which the process does not reach the defendant. A default judgment is the inevitable result in such cases. CPLR 317 addresses the problem by giving the defendant an opportunity to open the default by showing that she has failed to receive actual notice of the action in time to defend it and she has a meritorious defense. The second condition is based on the common sense notion that opening the default would be a futile gesture if no issue exists as to the plaintiff's right to recover" ( Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 317:1 ).
" CPLR 317 provides that a person served with a summons, other than by personal delivery to him or her, who does not appear, may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that he or she did not personally receive notice of the summons in time to defend and has a potentially meritorious defense" ( Dwyer Agency of Mahopac, LLC v. Dring Holding Corp. , 164 AD3d 1214, 1215-1216 [2d Dept 2018] ). The determination of a motion made pursuant to CPLR § 317 is within the sound discretion of the trial court, and a defendant moving pursuant to CPLR § 317 does not have to show a reasonable excuse for his or her delay, as is required on a motion made pursuant to CPLR § 5015 (a)(1) ( Dove v. 143 School St. Realty Corp. , 172 AD3d 1315, 1316 [2d Dept 2019] ). However, "[t]he mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317" ( Goldfarb v. Zhukov , 145 AD3d 757, 758 [2d Dept 2016] ; see also Moran v. Grand Slam Ventures, LLC , 160 AD3d 944 [2d Dept 2018] ).
With respect to motions made pursuant to CPLR § 5015 (4), "[a] court may not rule on the excusable nature of a defendant's default under CPLR 5015 (a)(1) without first determining the jurisdictional question under CPLR 5015 (a)(4)" ( Matter of Anna M. Adam , 93 AD3d 671, 672 [2d Dept 2012] ; see also Prudence v. Wright , 94 AD3d 1073 [2d Dept 2012] ; Toyota Motor Credit Corporation v. Lam , 93 AD3d 713 [2d Dept 2012] ; Harkless v. Reid , 23 AD3d 622, 623 [2d Dept 2005] ; Steele v. Hempstead Pub Taxi , 305 AD2d 401 [2d Dept 2003] ). Once the jurisdictional question is determined, a court can then properly rule on the excusable nature of a defendant's default ( Mayers v. Cadman Towers, Inc ., 89 AD2d 844 [2d Dept 1982] ); however, as is the case with CPLR § 317, "[t]he defendant's bare denial of service [is] insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308 (4) created by the process server's affidavit" ( Wunsch v. Cerwinski , 36 AD3d 612 [2d Dept 2007] ).
Accordingly, this Court must determine the threshold question concerning service of the summons and complaint. The defendant in this case has timely brought his application within one year of apparently learning of the judgment entered against him; however, his claims concerning the address where service was made are squarely rebutted by plaintiff, and defendant offers no reply papers controverting plaintiff's factually supported assertions that the Astoria, New York address is defendant's usual place of abode.
In support of his application, the defendant offers some bills/invoices from Spectrum/Time Warner Cable showing that cable service is provided to 130 W. 79th St. Apt. 14D, New York, New York. The same bills/invoices display a mailing address to defendant at 350 W. 37th St. Apt. 11B, New York, New York. These bills/invoices are not conclusive proof of residence, especially considering that the bills/invoices are mailed to defendant at one address, but service is provided to him at a completely different address in Manhattan.
In opposition to this application, plaintiff provides the affidavit of its Director of Operations, Kenneth S. Gray, annexing documents in plaintiff's possession demonstrating that the Astoria address is defendant's usual place of abode. The pilot training and employment agreement annexed to the complaint and verified by Mr. Gray was executed on October 6, 2018, and it lists defendant's address as being 34-51 10th Street, Astoria, New York. Likewise, the promissory note concerning reimbursement for the training lists the same Astoria address under the defendant's signature line. According to Mr. Gray, after the defendant left EFI on January 11, 2019, EFI received a request for the defendant's pilot training records from defendant's new employer, All In Jets, LLC. That written request form is annexed to the opposition papers, and Part II thereof is the airman's request for records, signed by the defendant who indicated that his mailing address for a copy of those records is 34-51 10th St. Astoria, New York. Mr. Gray further avers that the same Astoria address was listed on all of defendant's documents contained in plaintiff's employee file, including on defendant's driver's license, and that the Federal Aviation Administration (FAA) pilot certificate records list the same Astoria address as defendant's permanent mailing address as of the date of Mr. Gray's affidavit, October 30, 2019. Mr. Gray explains that, "[p]ursuant to FAR 61.60, a pilot is required to keep his current permanent mailing address on file with the FAA, and ‘may not exercise the privilege of the [pilot] certificate’ unless he/she has notified in writing the FAA within 30 days of a change in his/her permanent mailing address. See 14 CFR § 61.60" (Affidavit, 21)
"The holder of a pilot, flight instructor, or ground instructor certificate who has made a change in permanent mailing address may not, after 30 days from that date, exercise the privileges of the certificate unless the holder has notified in writing the FAA, Airman Certification Branch, P.O. Box 25082, Oklahoma City, OK 73125, of the new permanent mailing address, or of the permanent mailing address includes a post office box number, then the holder's current residential address" (14 CFR 61.60 ).
Furthermore, plaintiff's counsel's affirmation states that the summons and complaint mailed to the defendant on May 30, 2019, the additional copy of the summons and complaint mailed to him on June 18, 2019, the demand letter dated March 19, 2019, and a copy of the default judgment with Restraining Notice mailed on October 1, 2019 were all sent to the Astoria, New York address, and that none of the mailed documents was returned as undeliverable by the United States Post Office. In fact, Exhibit B annexed to the opposition papers demonstrates that the copy of the default judgment, Restraining Notice and information subpoena was addressed to the defendant at the Astoria address and was signed for by someone at that address, either the defendant or someone acting on his behalf (Affirmation, 10).
Plaintiff has also annexed a New York State Department of Motor Vehicles (NYS DMV) record expansion printout for the defendant showing that as of October 24, 2019 defendant's address as listed with the NYS DMV is the same Astoria address where service of the summons and complaint was made on May 28, 2019.
The defendant does not offer any reply controverting the assertions and proof submitted by plaintiff in this action concerning the validity of the Astoria address as his usual place of abode. By failing to controvert plaintiff's proof, the truth of plaintiff's assertions is deemed admitted by the defendant (see Kuehne & Nagel, Inc. v. Baiden , 36 NY2d 539 [1975] ; McNamee v. City of New Rochelle , 29 AD3d 544 [2d Dept 2006] ; Bell Atlantic Yellow Pages Co. v. Padded Wagon, Inc. , 292 AD2d 317 [1st Dept 2002] ; Schneider Fuel Oil, Inc. v. DeGennaro , 238 AD2d 495 [2d Dept 1997] ).
Accordingly, this Court cannot make a finding under CPLR § 317 that the defendant did not personally receive notice of the summons in time to defend against it. Defendant has also failed to rebut the prima facie proof of proper service pursuant to CPLR 308 (4) created by the process server's affidavit ( Wunsch , supra ). Thus, vacatur of the default judgment and dismissal of this action pursuant to CPLR § 5015 (a)(4) is not warranted, and the Court may rule on the excusable nature of defendant's default and whether he has a meritorious defense to this action (see Harkless , supra ).
The "determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court..." ( Lemberger v. Congregation Yetev Lev D'Satmar, Inc. , 33 AD3d 671, 672 [2d Dept 2006] ; see also Hodges v. Sidial , 48 AD3d 633 [2d Dept 2008] ).
This defendant fails to provide any excuse for his failure to answer the summons and complaint, aside from his bare denial of receipt of the summons and complaint based on the disproven claim that he was served at his "old address."
"In light of [these] determination[s], it is not necessary to determine whether the defendant demonstrated the existence of a potentially meritorious defense for purposes of either CPLR 5015 (a)(1) or 317" ( Goldfarb , supra at 759).
Defendant's motion is denied.
The foregoing constitutes the Decision and Order of this Court.