Opinion
2021-51269
12-29-2021
U.S. Equities Corp., Plaintiff-Appellant, v. Ihsan U. Haqaziz, Defendant-Respondent.
Unpublished Opinion
PRESENT: Edmead, P.J., Hagler, Silvera, JJ.
570172/21
PER CURIAM.
Plaintiff, as limited by its brief, appeals from those portions of an order of the Civil Court of the City of New York, New York County (Dakota D. Ramseur, J.), dated February 4, 2020, which vacated the default judgment, deemed the answer filed and served and set the matter down for a pretrial conference.
Order (Dakota D. Ramseur, J.), dated February 4, 2020, insofar as appealed from, affirmed, without costs.Civil Court providently exercised its discretion in granting defendant's motion to vacate the default judgment and for related relief. Defendant's contention that he was not properly served with the summons and complaint established excusable default in the circumstances present (see generally GEM Invs. Am., LLC v Marquez, 180 A.D.3d 513 [2020]), where no affidavit of service or other proof was submitted to Civil Court on the motion to establish that the plaintiff effected proper service of process upon defendant (see Fleisher v Kaba, 78 A.D.3d 1118, 1119-1120 [2010]; Aloi v Firebird Frgt. Serv. Corp., 251 A.D.2d 608, 609 [1998]). Nor has defendant either explicitly or implicitly participated in the action, or engaged in any other conduct that would waive his jurisdictional objection (see HSBC Bank USA, N.A. v A & R Trucking Co., Inc., 66 A.D.3d 606, 607 [2009]).
Defendant also established a meritorious defense to this action for alleged credit card debt, by submitting proof indicating that he was out of the country during the relevant period and had been the victim of identity theft.
I concur