Opinion
CV-08-728.
Decided December 4, 2009.
Mitchell L. Williamson, Esq., Pressler Pressler, Attorneys for the Plaintiff, New York, NY.
Michael E. Cerrito Defendant, pro se., Edison, NJ.
Having read the affirmation of Mitchell L. Williamson, dated November 20, 2009, the plaintiff seeks to have the default judgment entered against the defendant on September 5, 2008 in the amount of $978.23 vacated, on the grounds that the defendant "is not liable to the plaintiff." Plaintiff's ex-parte motion was initially rejected by the Court for failing to provide proof of service of the motion upon the defendant. While plaintiff's motion has since been resubmitted, the affirmation of service indicates that the plaintiff only served a copy of the "Ex-Parte Order Vacating Judgment and Discontinuing Action." Whether it is by deception, defect, or design, clearly missing from the affirmation is proof that the plaintiff served the defendant with its "affirmation in support of its ex-parte order to vacate judgment and discontinue action." As well, the motion remains labeled "ex-parte", even though the plaintiff's attorney was specifically instructed to serve the defendant with its application. Defendant having been served with that part of the plaintiff's application which provides no basis for its relief, has filed no opposition. Now, having duly deliberated upon said motion, the Court finds and determines the matter as follows:
Civil Practice Law and Rules § 5015 (a)(1) provides that the court which rendered a judgment may relieve a party upon the ground of excusable default if a motion is made within one year after service of a copy of the judgment or order upon the moving party. While there exists a judicial preference for resolving disputes on the merits (see, Dodge v. Commander , 18 AD3d 943) motions to vacate default judgments are addressed to the trial court's sound discretion. See, Goldman v. Cotter , 10 AD3d 289 (2004). Here, the plaintiff seeks to vacate the judgment rendered in its favor on the grounds that the defendant is not liable. The defendant has not filed opposition, and thus the motion is granted in this regard. Notwithstanding, this Court is compelled to address the issue involving plaintiff's filing of an ex-parte motion in the absence of a statute authorizing this.
The notion that plaintiff can move to vacate a default judgment against the defendant ex-parte is misplaced. All motions must be made on notice. Whether the defendant may be prejudiced by vacating a judgment that perhaps he never was aware existed, is an issue for the defendant to raise. The general rule of law is that ex-parte motions may only be made when a statute or rule explicitly authorizes such practice. Essex v. Newman, 220 AD2d 639 (2d Dept. 1995); DAVID D. SIEGEL, NEW YORK PRACTICE 4TH ed., p. 411-12. There exists no statute or rule explicitly authorizing that motions to vacate are made ex-parte. Indeed, the statute which sets forth relief from a judgment or order, provides that the motion must be made upon such notice as the court may direct. C.P.L.R. § 5015. Here, the Court finds that a plaintiff's motions to vacate a default judgment should be made upon notice to the defendant.
In this matter, the Court notes that nail and mail service of the summons and complaint was effectuated by an agent of "American Legal Process." Service was made upon the defendant at an address which is different from the one that is set forth in the plaintiff's affirmation of service for the motion. Earlier this year, a scandal was unearthed by the New York State Attorney General's Office which revealed that American Legal Process failed to properly serve consumers across New York State with legal papers. Rather, "sewer service" was employed, which is a method used where process servers fail to properly alert defendants facing lawsuits, which in turn, denies defendants the chance to respond to the allegations. The Attorney General's Office ultimately filed a lawsuit seeking to throw out an estimated 100,000 default judgments improperly obtained against New York consumers. Among the law firms sued were Pressler and Pressler, who utilized American Legal Process, and are the attorneys for the plaintiff in this matter. As a result of this finding by the Attorney General's Office, the Unified Court System undertook extreme caution on all matters involving American Legal Process, and has sought independent verification of whether proper service was actually made upon a defendant who has failed to appear in an action.
In this matter, the default judgment was entered on September 5, 2008, due to defendant's failure to appear. The judgment was entered before this scandal against American Legal Process was unearthed. Here, since the defendant was served via nail and mail service by an agent of American Legal Process, and in the absence of independent verification that the defendant was indeed served, this Court remains skeptical about whether service was ever effectuated at all. Thus, a motion to vacate filed ex-parte, could conceivably have conjured a situation wherein the defendant who conceivably was never properly served by American Legal Process, never knew a lawsuit was pending, or that a judgment was entered, or that a motion was made (if the ex-parte motion was accepted), or that a judgment was ever vacated (if the ex-parte motion was accepted). The irony that in our American legal process (no pun intended), an action could be commenced, judgment entered and judgment even vacated without the accused ever knowing the action ever existed, shakes the foundation of our system of justice and annihilates the rights of the individual being accused to defend himself, and even abrogates the defendant's rights to seek his own justice. More than one year later, the plaintiff now seeks to vacate the very judgment it obtained against the defendant because the defendant is "not liable". Such motions must be made upon notice to the defendant.
While the plaintiff may argue that the defendant could not be prejudiced or affected in the least by the relief plaintiff seeks and thus such motions can and should be made ex-parte, this simply is not the case. The issue of whether the defendant is affected is an issue for the defendant to decide. Whether this particular default judgment affected the defendant's credit rating and ability to obtain a loan or mortgage remains an issue for the defendant to determine.
In addition, the fact that the plaintiff now seeks to vacate the judgment because the defendant "is not liable" for the debt, begs the question of whether the lawsuit should have ever been filed in the first place. The law provides for the Court to issue sanctions against any party or attorney in any civil action before the Court wherein it is discovered that frivolous conduct has been engaged in. 22 N.Y.C.R.R. § 130-1.1. Thus, the fact that the basis for vacating the default judgment is that the defendant was not liable for the debt as set forth in the complaint, begs yet another question of whether the attorney sufficiently invested the legal and factual basis of the claim prior to filing the suit. See, Worldwide Asset Purchasing, LLC v. Akrofi , 25 Misc 3d 768 (City Court 2009) (Court imposed sanctions upon plaintiff's attorney for filing a frivolous debt collection suit without meeting his continuing duty to assess the legal and factual basis of a claim). Based upon the information currently before it, this Court cannot reach the merits of these questions, for there is no opposition or need for a hearing. However, these facts bespeak the need that all motions are to be made upon notice to the other side, irrespective of one party's myopic view that their motion could not possibly prejudice or negatively affect the other side in the least. The plaintiff simple does not know what effect entry of a judgment may have had on a particular defendant. That is why this Court concludes that such motions must be made upon notice to the other side, ensuring that no party's rights are prejudiced.
THEREFORE, based upon the foregoing, it is now
ORDERED that any existing restraints levied against the defendant's property, including bank accounts, shall be stayed; and it is further
ORDERED, that the plaintiff provide this Court with proof of service upon the defendant of the entire motion within ten (10) business days of the date of this Order; and it is further
ORDERED, that in the absence of plaintiff providing proof of proper service, the default judgment shall be vacated and the matter set down for a hearing to impose sanctions upon the plaintiff's attorney; and it is further
ORDERED, thatupon proof of proper service filed by the plaintiff, a certified copy of this Order shall be filed by the plaintiff with County Clerk of Dutchess County to effectuate the vacatur of any transcript of judgment previously issued by this Court and lifting of any existing restraints levied against the defendant's property; and it is further
ORDERED, that the law firm of Pressler Pressler is hereby directed not to file ex-parte motions to vacate default judgments with this Court; and it is further
ORDERED, that the law firm of Pressler Pressler is hereby directed to provide sufficient proof of service upon the defendant (s) involving all motions seeking to vacate default judgments filed with this Court.
SO ORDERED.