Opinion
No. CV049136/02NY.
2012-06-25
NORTHERN LEASING SYSTEMS, INC., Plaintiff, v. Shirley WALTON, aka Shirley A. Walton, aka Shirley Ann Johanson, Defendant.
Joseph Sussman, Law Offices of Joseph Sussman, NY, for Plaintiff. Defendant was self-represented.
Joseph Sussman, Law Offices of Joseph Sussman, NY, for Plaintiff. Defendant was self-represented.
MARGARET CHAN, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in this order to show cause:
Defendant, Shirley Walton AKA Shirley A. Walton, AKA Shirley Ann Johanson (“Walton”), moved to vacate a default judgment entered against her in 2003. Defendant, who is self-represented, also proffered that defending this action in New York would create an “extreme hardship” to her and her family.
On November 5, 2003, plaintiff obtained a default judgment against defendant in the amount of $2,113.26. In support of her motion, defendant sets forth both a reasonable excuse for the default and a meritorious defense to the action. Defendant asserted that she was not aware of the litigation because she was not properly served. As to a meritorious defense, defendant stated, inter alia, that the contract between the parties was unconscionable and the product she received was defective.
It is noted that defendant's allegations are substantially the same or similar to scores of cases involving plaintiff and other out-of-state residents that have come before this judge in this court. In fact, this court has permitted out-of-state residents to appear telephonically in cases involving plaintiff so as not to financially burden them with traveling to New York to defend these actions. This practice has been in place for several years in the Civil Court ( see Northern Leasing Systems, Inc. v. Soumastre, Civ Ct, N.Y. Cty, January 26, 2005, Cooper, J., index No. 13566/03), and became a directive of the Administrative Judge of this County sometime last year.
Similarly to the Soumastre case, and legions of other cases brought by plaintiff, defendant lives many miles away from this jurisdiction; defendant herein resides in Texas. She dealt with plaintiff's representatives in Texas, plaintiff delivered the subject equipment to defendant's business in Texas, and plaintiff is clearly conducting business in Texas. This court sua sponte recognizes that the Civil Court of the City of New York lacks jurisdiction over the defendant and is, thus, not the proper forum as there is no nexus between the parties' controversy and New York.
It is apparent that plaintiff's suit in New York, approximately 1600 miles away from where defendant lives and works, puts defendant at a significant disadvantage in defending herself. From the numerous cases that it has presided over, this court is aware of the boiler-plate provision in plaintiff's lease agreement to justify proceeding against an out-of-state resident in New York. “To allow plaintiff to do so is to effectively deprive litigants [such as defendant] of their day in court.” ( id. at 2 citing Hunt v. Landers, 309 A.D.2d 900 [App.Div., 2d Dept 2003]; see Fidelity & Deposit Co. of Maryland v. Altman, 209 A.D.2d 195, [App.Div., 1st Dept 1994] ). Even though forum selection clauses are prima facie valid, they may be set aside where enforcement would be so unreasonable and unjust as to make trial in the selected forum so gravely difficult and inconvenient that a challenging party would, for all practical purposes, be deprived of his or her day in court ( see Fidelity & Deposit Co. of Maryland v. Altman, 209 A.D.2d 195).
Defendant proffered that she resides and works in Texas and traveling to New York would “create an extreme hardship” to her and her family. Defendant further proffered that she receives social security benefits. This action may not be maintained in New York County where defendant is effectively deprived of her day in court.
In any event, a review of plaintiff's verified complaint, which is annexed to its opposition to defendant's motion, states the parties entered into a “non-cancelable equipment lease agreement ... with RUSTY'S ROCKING ROADHOUSE GRILL” on February 28, 2001. However, the annexed lease agreement indicates it was signed on February 27, 2001 with a merchant called “The Unique Boutique.” The complaint is thereby erroneous and failed to reasonably apprise the defendant of the basis of this action.
Accordingly, the defendant's motion to vacate the judgment and dismiss the action is granted. Any levy or restraint on defendant's bank account is hereby lifted and the default judgment in this matter is vacated. The complaint is hereby dismissed.
This constitutes the decision and order of the court.