Opinion
Index No. CV-027482-19/NY
10-08-2024
FC 8 Spruce Street Residential LLC, Plaintiff(s), v. Lam Sheuk, Defendant(s).
Attorneys for Plaintiff James P. Scully, Esq., Kirschenbaum & Phillips, P.C. Attorneys for Defendant Steven Thomas Beard, Esq.
Unpublished Opinion
Attorneys for Plaintiff James P. Scully, Esq., Kirschenbaum & Phillips, P.C.
Attorneys for Defendant Steven Thomas Beard, Esq.
Rena Malik, J.
Recitation, as required by CPLR 2219 (a), of the papers considered on this motion:
Papers Numbered
Order to Show Cause, Affirmation in Support, Affirmation in Support & Exhibits A - I 1-3
Affirmation in Opposition & Exhibits A - D 4
Reply Affirmation, Reply Affirmation 5-6
At the appearance on the motion, counsel for plaintiff objected to defendant's reply in connection with a motion by order to show cause. As 22 NYCRR 202.8-d is not applicable to the civil court, the reply is accepted.
Upon the foregoing papers, defendant Sheuk Lam (s/h/a Lam Sheuk) moves to vacate the default judgment, dismiss the action for lack of personal jurisdiction, and directing the return of funds levied. Plaintiff opposes to the motion.
"[W]here, as here, a defendant seeking to vacate a default raises a jurisdictional objection pursuant to CPLR 5015 (a) (4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default" (Rattner v Fessler, 202 A.D.3d 1011, 1015 [2d Dept 2022]; see SOS Capital v Recycling Paper Partners of PA, LLC, 220 A.D.3d 25, 31 [1st Dept 2023] [discretionary vacatur pursuant to CPLR 5015 (a) (1) "assumes personal jurisdiction exists over a defaulting defendant"; thus, a court "must first resolve the issue of personal jurisdiction over the individual defendants before determining whether it [is] appropriate" to consider discretionary vacatur]).
In support of the motion, defendant asserts lack of personal jurisdiction and states that she was never served with any notices, pleadings or documentation relating to the action, and apparently only learned of the action after the default judgment had been entered and satisfied by levy upon her bank account (Lam aff, para 7-10; Scully aff, paras. 6-11).
The 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:... 4. Lack of jurisdiction to render the judgment or order (CPLR 5015 [a] [4]).
Here, the affidavit of service avers that the summons and complaint were served upon defendant by substituted service upon "Nan Sheuk" at 1 West Street, Apt 2720, New York, New York 10004, and a mailing was sent to the same address (Beard aff, exhibit C). CPLR 308 (2) requires the summons be delivered "to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served."
Defendant states that she does not know anyone named Nan Sheuk, nor have any family members with last name Sheuk. Because defendant's name is Sheuk Lam, having been captioned incorrectly in this action, she would not have any family member with last name Sheuk (Lam aff, paras 1, 12).
Moreover, defendant's affirmation and documents submitted in support reflect that, while the address served was a former address, it was not defendant's residence during the relevant time period nor her usual place of abode (Lam aff, para 8, 11-26). Defendant claims that she left that apartment on May 22, 2019 and submitted proof of the same consisting of emails between the management regarding the move-out date; a certificate of liability from the moving company showing the same move-out date; a new lease for another apartment beginning May 22, 2019; a stipulation between defendant and then-landlord dated July 8, 2019 that specifically acknowledges that "Respondent vacated the apartment." Plaintiff's purported service at this address, which appears to be only a last known residence, does not meet the requirement under CPLR 308 (2) of a dwelling place or usual place of abode (see generally Feinstein v Bergner, 48 N.Y.2d 234 [1979]).
"[O]nce jurisdiction and service of process are questioned, plaintiffs have the burden of proving satisfaction of statutory and due process prerequisites" (Stewart v Volkswagen of Am., Inc., 81 N.Y.2d 203, 207 [1993]). Plaintiff failed to submit any evidence in opposition to the motion demonstrating proper service of the summons and complaint, nor otherwise sufficiently demonstrate that a traverse hearing would be warranted. Indeed, plaintiff's affirmation in opposition acknowledges the defendant's stipulation with "her Landlord" in the Housing Court proceeding, and in the same breath acknowledges that such stipulation, which is dated July 8, 2019, was "immediately following the within tenancy" (Scully aff at ¶ 6). The Court cannot accept plaintiff's arguments that defendant's proof is somehow insufficient to show defective service and that the address served was neither her "dwelling place" or "usual place of abode" (see, e.g., Scully aff at ¶¶ 17, 19).
Accordingly, the Court finds that personal jurisdiction does not lie against defendant, and the default should be vacated pursuant to CPLR 5015 (a) (4) without the necessity of a traverse hearing (see Schurr v Fillebrown, 146 A.D.2d 623, 623-24 [2d Dept 1989]; Silvering v Sunrise Family Med., P.C., 161 A.D.3d 1021, 1022-23 [2d Dept 2018]; see, e.g., New York State Higher Educ. Servs. Corp. v Perchik, 207 A.D.2d 1040 [4th Dept 1994]; Design Dev. NYC, Inc. v Goldstein, 2019 NY Slip Op 30854[U], *1-3 [Sup Ct, NY County 2019]; Cohen, DPM v Sumba 2021 WL 2891550 [Sup Ct, NY County 2021]).
As there was no personal jurisdiction over defendant, "all subsequent proceedings will be rendered null and void" (Rattner v Fessler, 202 A.D.3d 1011, 1016 [2d Dept 2022]), which necessarily includes the judgment. This is true even where, as here, judgment has been paid and satisfied because "if a judgment is a nullity, it never legally existed so as to become extinguished by payment" (Yellowbook, Inc. v Hedge, 183 A.D.3d 925, 926 [2d Dept 2020], quoting Cach, LLC v Ryan, 158 A.D.3d 1193, 1193-94 [4th Dept 2018] [internal quotations omitted]).
In light of the vacatur of the judgment, restitution in the judgment amount of $ 8,801.13 or the amount otherwise seized is appropriate pursuant to CPLR 5523.
Accordingly, it is hereby ORDERED that the motion is granted and the judgment entered on June 1, 2021 is vacated; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of defendant dismissing the action; and it is further
ORDERED that plaintiff shall return to defendant all sums received to satisfy the now-vacated judgment within 30 days after service of a copy of this order with notice of entry.
This constitutes the decision and order of the Court.