Opinion
2003-372 K C.
Decided November 21, 2003.
Appeal by plaintiff from (1) an order of the Civil Court, Kings County (L. Jacobson, J.), entered September 23, 2002, which granted, on default, the motion of movant Lionel Shaw to, in effect, vacate the garnishment and order the restoration of the money which was removed from his bank account and (2) an order of the same court, entered November 25, 2002, which denied, without prejudice to renewal upon proper papers, plaintiff's motion to, inter alia, vacate the order entered September 23, 2002.
Appeal from order entered September 23, 2002 unanimously dismissed.
Order entered November 25, 2002 unanimously reversed without costs and plaintiff's motion for an order vacating the order entered September 23, 2002 and setting the matter down for a new hearing granted.
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
On April 5, 2000, plaintiff entered a default judgment against an individual named Lionel Shaw. Thereafter, the judgment was satisfied and a satisfaction of judgment was filed. On July 15, 2002, an individual named Lionel Shaw (hereinafter Movant) moved, in effect, to vacate the judgment insofar as it was enforced against him and for restitution of the money plaintiff obtained from him. Although the court scheduled a hearing, plaintiff failed to appear. As a result, the court entered an order on September 23, 2002 which granted Movant's motion on default. Plaintiff promptly moved to vacate the order dated September 23, 2002 and to have a new hearing scheduled. The court denied plaintiff's motion, holding that affidavits were required from individuals with personal knowledge establishing the validity of the underlying judgment and with personal knowledge responsive to Movant's assertion that he is not the judgment debtor. These appeals ensued.
Plaintiff cannot appeal from the order entered September 23, 2002 as it was entered upon plaintiff's failure to appear for a hearing and no appeal lies from an order entered on default ( see CPLR 5511; Forma v. City of New York, 273 AD2d 271).
We note that Movant did not contest the propriety of the underlying judgment and the order entered September 23, 2002 stated that the judgment remained in full force and effect as to the true judgment debtor. Turning to the merits of plaintiff's motion, plaintiff's counsel claims that he did not appear for the hearing because he was unaware of the hearing date. Ordinarily, such a bare assertion would be insufficient to establish a reasonable excuse for the default ( see Matter of Aetna Life Cas. Co. v. Walker, 255 AD2d 381; Orlando v. Corning Inc., 213 AD2d 464; Jeraci v. Froehlich, 129 AD2d 557). However, the record in the instant case is bereft of any documentary evidence which indicates that plaintiff's counsel was advised of the hearing date ( cf. Matter of Aetna Life Cas. Co., 255 AD2d 381; Orlando, 213 AD2d 464; Jeraci, 129 AD2d 557). Inasmuch as the record does not contain sworn testimony from the hearing, at which Movant was obligated to make a prima facie showing that he was hot the judgment debtor, and plaintiff set forth arguments which could warrant the denial of Movant's motion, such as the fact that Movant apparently waited almost 20 months after an income execution was commenced before seeking relief ( see H.D.I. Diamonds v. Frederick Modell, Inc., 86 AD2d 561; Chase Manhattan Bank, U.S.A. v. Kassam, 167 Misc 2d 933; see also Schildkraut v. Schildkraut, 240 AD2d 649; First Nationwide Bank v. Calano, 223 AD2d 524), plaintiff's motion for an order vacating the order entered September 23, 2002 and setting the matter down for a new hearing to adjudicate Movant's claim that he is not the judgment debtor should have been granted.