Opinion
2957-04
Decided June 17, 2005.
Thomas A. Dredger Jr, Esq., Mullooly, Jeffrey, Rooney Flynn LLP., Attorneys for Plaintiff, 4 Bridge Street, Glen Cove, New York 11542.
Sese Dale, Defendant pro se.
In this action seeking to recover the outstanding balance under a revolving credit card account, defendant moves by Order to Show Cause dated April 29, 2005 to vacate the entry of a default judgment against him. The plaintiff consents to vacate the default judgment previously entered, provided that an answer to the complaint waiving jurisdictional claims is interposed by the defendant within twenty days of the Order granting the motion.
Following service of the summons and complaint via substituted service, the plaintiff entered a default judgment upon the defendant on October 12, 2004 in the amount of $2773.30. In his Order to Show Cause, the defendant contends that he never received the summons in this action, and that he has a meritorious defense.
CPLR 5015 states that "The court which rendered a judgment or order may relieve a party from it upon such terms as may be just . . . upon the ground of: 4. Lack of jurisdiction to render the judgment or order. Where the defendant asserts a lack of personal jurisdiction as the ground for vacatur, the defendant need not demonstrate a reasonable excuse for the default or a meritorious defense ( European American Bank Trust Co. v. Serota, supra; see also Steele v. Hempstead Pub Taxi, 305 AD2d 401 (2nd Dept 2003)).
In view of the defendant's allegation in his affidavit that he had not been properly served with the summons and complaint, an issue of fact is raised requiring a traverse hearing ( European American Bank Trust Co. v. Serota, 242 AD2d 363 (2nd Dept 1997); Greenpoint Savings Bank v. Taylor, 92 AD2d 910 (2nd Dept 1983)), and thereupon whether the complaint will be dismissed or whether the default will be vacated under CPLR 5015 ( Kent v. Fearless Realty, Inc., 174 AD2d 499 (1st Dept 1991); Mayers v. Cadman Towers, 89 AD2d 844 (2nd Dept 1982). An affidavit of service is not conclusive once there is a sworn denial of receipt ( Matter of St. Christopher-Ottilie, 169 AD2d 690 (2nd Dept 1991)).
Although the plaintiff has consented to vacate the default judgment if the defendant submits an answer, in light of the defendant's submission of a sworn denial of receipt of service, the Court must first determine the jurisdictional question under CPLR 5015(4) ( see Citibank v. Keller, 133 AD2d 63 (2nd Dept 1987)). If defendant demonstrates a lack of proper service at a hearing, the action would be dismissed.
The parties are directed to appear at a traverse hearing on July 7, 2005 at 1:30 p.m.
This constitutes the Decision and Order of the Court.
The Court considered the following papers on this motion:
Order to Show Cause dated April 29, 2005, Affidavit in support. Affirmation in Opposition dated May 11, 2005.