Opinion
INDEX 656543/2019
11-17-2021
SLICE BUSINESS MARKETING, INC., Plaintiff, v. MARVIN KIPP, GIOVANI BAPTISTE, MICHAEL STYLES, DEAN BECKWITH, ERIC WALTON, DERRICK WATKINS, SELECT MERCHANT SERVICE, INC. Defendant. MOTION SEQ. No. 003
ANDREW BORROK, JSC
Unpublished Opinion
PRESENT: HON. ANDREW BORROK Justice
DECISION + ORDER ON MOTION
ANDREW BORROK, JSC
The following e-filed documents, listed by NYSCEF document number (Motion 003) 80, 81, 82, 83, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102 were read on this motion to/for JUDGMENT - DEFAULT. Slice Business Marketing, Inc.'s (Slice) motion for a default judgment is granted without opposition solely as against Marvin Kipp, Michael Styles, Dean Beckwith, Eric Walton, and Derrick Watkins, pursuant to CPLR 3215. Slice properly served these defendants and provided the additional mailing, affidavit of non-military service, and an affidavit of merit for the alleged default. The motion for a default judgment is denied solely as against Giovanni Jean-Baptiste.
Mr. Jean-Baptiste was incorrectly named in the complaint as Giovani Baptiste
"The affidavit of the process server constitutes prima facie evidence of proper service and the mere conclusory denial of receipt of service is insufficient to rebut the presumption that service was proper" (Grinshpun v Borokhovich, 100 A.D.3d 551, 552 [1st Dept 2012], lv denied 21 N.Y.3d 857 [2013]). However, a "sworn non-conclusory denial of service by a defendant is sufficient to dispute the veracity or content of the affidavit, requiring a traverse hearing" (NYCTL 1998-1 Trust v Rabinowitz, 7 A.D.3d 459, 460 [1st Dept 2004]).
"To obtain relief from a default judgment, a party is required to demonstrate both a reasonable excuse for the default and a meritorious claim or defense to the action" (Bobet v Rockefeller Center, North, Inc., 78 A.D.3d 475, 475 [1st Dept 2010]). A court may exercise discretion in finding a reasonable excuse and a meritorious defense, particularly in light of "the strong policy favoring adjudication on the merits" (National Union Fire Ins. Co. of Pittsburgh, PA v Diamond, 39 A.D.3d 360, 361 [1st Dept 2007]) and where there is "no indication of a pattern of dilatory behavior or evidence that the default was willful, and there was no claim of prejudice" (Bobet v Rockefeller Center, North, Inc., 78 A.D.3d at 474).
For completeness, in opposition to the motion for a default judgment, Mr. Jean-Baptiste submitted an affidavit in which he states that he did not live at 1 Tuscany Drive, Jackson, New Jersey on November 15, 2019, when Slice proports to have served him (Aff of Giovanni Jean-Baptiste; NYSCEF Doc. No. 89, ¶ 3). In his affidavit, Mr. Jean-Baptiste claims that he lived with his father a 455 Bainbridge Street, Brooklyn, New York (id., ¶ 5) and that the 1 Tuscany Drive address is the residence of his mother, her husband, and her mother (id, ¶ 2). As a result, Mr. Jean-Baptiste claims that he did not receive the summons and complaint until January 2021 (id, ¶ 10). Mr. Jean-Baptiste's mother, Ana Davis, also submitted an affidavit that Mr. Jean-Baptiste did not live at the 1 Tuscany Drive address on November 15, 2019 (Aff. of Ana Davis; NYSCEF Doc. No. 90, ¶ 3). Ms. Davis also testified that the process server left documents on her steps, did not ask if Mr. Jean-Baptiste lived or worked at the address, and that the affidavit saying that she responded affirmatively that Mr. Jean-Baptiste lived there was not accurate (id, ¶¶ 5-9). Additionally, on the record (11.17.21), he accepted service of process and indicated that he would file a responsive pleading within 20 days of today's date with the understanding that should he fail to do so, Slice was given leave to have the court enter judgment against him.
In response, Slice submitted a copy of Mr. Jean-Baptiste's drivers license (NYSCEF Doc. No. 93), his employment agreement with Slice (NYSCEF Doc. No. 94), an employee's withholding allowance certificate (NYSCEF Doc. No. 95), an employment eligibility verification form (NYSCEF Doc. No. 96), and an emergency contact form (NYSCEF Doc. No. 97), all of which list his address as the 1 Tuscany Drive address. These documents are all dated between November 13, 2017 and February 28, 2019, beginning two years before Mr. Jean-Baptiste was allegedly served and ending nearly nine months before that time.
Mr. Jean-Baptiste's and Ms. Davis's affidavits are sufficiently non-conclusory because he provided the address where he lived at the time of service and in any event accepted service of process on the record. Thus, based on the strong public policy of deciding cases on the merits, Mr. Jean-Baptiste must file within 20 days from this order a responsive pleading. Should he fail to file an answer within 20 days, Slice shall be authorized to submit judgment to Part 53.
It is accordingly hereby ORDERED that Slice Business Marketing, Inc.'s motion for a default judgment is granted solely as against Marvin Kipp, Michael Styles, Dean Beckwith, Eric Walton, and Derrick Watkins; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of Slice Business Marketing, Inc. and against Marvin Kipp, Michael Styles, Dean Beckwith, Eric Walton, and Derrick Watkins; and it is further
ORDERED that Slice Business Marketing, Inc.'s motion for a default judgment as against Giovanni Jean-Baptiste is denied; and it is further
ORDERED that Giovanni Jean-Baptiste shall file a responsive pleading within 20 days of the date of this order, and, if he fails to do so, he shall be in default and Slice Business Marketing, Inc. shall be authorized to enter judgment against him; and it is further
ORDERED that the issue of damages owed to Slice Business Marketing, Inc. by the defaulting parties will be referred to a Judicial Hearing Officer ("JHO") or Special Referee for an inquest at the time of trial.
CHECK ONE: [X] CASE DISPOSED [ ] NON-FINAL DISPOSITION
[ ] GRANTED [ ] DENIED [ X] GRANTED IN PART [ ] OTHER
APPLICATION: [ ] SETTLE ORDER [ ] SUBMIT ORDER
CHECK IF APPROPRIATE: [ ] INCLUDES TRANSFER/REASSIGN [ ] FIDUCIARY APPOINTMENT [X] REFERENCE