Opinion
No. 2023-635 RI C
08-30-2024
LVNV Funding, LLC, Respondent, v. Abel R. Alvarado, Appellant.
Camba Legal Services, Inc. (Divya Subrahmanyam of counsel), for appellant. J. Robbin Law, PLLC (Austin O'Brien of counsel), for respondent.
Unpublished Opinion
Camba Legal Services, Inc. (Divya Subrahmanyam of counsel), for appellant.
J. Robbin Law, PLLC (Austin O'Brien of counsel), for respondent.
PRESENT: WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered April 18, 2023. The order denied defendant's motion to vacate a judgment entered upon his failure to appear or answer the complaint.
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this action in April 2014 to recover the principal sum of $8,477.02 for breach of a credit card agreement and upon an account stated. The affidavit of service states that, on April 8, 2014, the summons and complaint were delivered to a person of suitable age and discretion, a co-tenant, at defendant's dwelling place, and then, on April 9, 2014, mailed to defendant's last known residence (see CPLR 308 [2]). On January 6, 2015, a judgment in the total sum of $13,003.62 was entered against defendant upon his failure to appear or answer the complaint.
In January 2020, defendant became aware that his wages were being garnished. Over two and a half years later, in September 2022, defendant moved to vacate the default judgment pursuant to CPLR 5015 (a) (4) on the ground of lack of jurisdiction, as he was never served with the summons and complaint, and, pursuant to CPLR 5015 (a) (1), on the ground of excusable default. Plaintiff opposed the motion. By order entered April 18, 2023, the Civil Court (Mary A. Kavanagh, J.) denied defendant's motion.
When a defendant moves to vacate a default judgment pursuant to CPLR 5015 (a) (4) and (a) (1), the court is required to resolve the CPLR 5015 (a) (4) jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur pursuant to CPLR 5015 (a) (1) (see Emigrant Mtge. Co., Inc. v Westervelt, 105 A.D.3d 896 [2013]; Capital Equity Mgt., LLC v Carrozza, 65 Misc.3d 153 [A], 2019 NY Slip Op 51888[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). A defendant may waive lack of personal jurisdiction where payments were made pursuant to a wage garnishment for a substantial period of time (see Cadlerock Joint Venture, L.P. v Kierstedt, 119 A.D.3d 627 [2014]). Here, defendant admitted that he was aware that his wages had been garnished beginning in early 2020, which continued until he lost his job, and that he waited over two and a half years thereafter before bringing this motion to vacate the judgment. Consequently, defendant waived the defense of lack of jurisdiction, and the branch of defendant's motion seeking to vacate the default judgment pursuant to CPLR 5015 (a) (4) was properly denied (see Cadlerock Joint Venture, L.P. v Kierstedt, 119 A.D.3d at 628; U.S. Equities Corp. v Bartolini, 82 Misc.3d 128 [A], 2024 NY Slip Op 50396[U] [App Term, 2d Dept, 9th and 10th Jud Dists 2024]; cf. Esgro Capital Mgt., LLC v Banks, 222 A.D.3d 433 [2023]).
To the extent that defendant's motion sought to vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant's conclusory statements were insufficient to constitute an excusable default (see U.S. Bank, N.A. v Moultrie, 186 A.D.3d 525 [2020]) or a potentially meritorious defense to the action (see Matter of Hines v Baptiste, 178 A.D.3d 825 [2019]; Wise v Classon Vil., L.P., 172 A.D.3d 1444 [2019]).
Accordingly, the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.