Wauchope v. Williams

6 Citing cases

  1. Castillo-Florez v. Charlecius

    220 A.D.3d 1 (N.Y. App. Div. 2023)   Cited 6 times   1 Legal Analyses

    Subsequent to Anello, decisions from this Court continued to use similar language indicating that estoppel was mandatory in all circumstances where a defendant failed to comply with the Vehicle and Traffic Law address notification provisions (see e.g.Sherrill v. Pettiford, 172 A.D.2d 512, 513, 567 N.Y.S.2d 859 ["A party who fails to comply with [ Vehicle and Traffic Law § 505(5) ] will be estopped from challenging the propriety of service which is made to the former address"], citing Anello v. Barry, 149 A.D.2d 640, 540 N.Y.S.2d 460 ). Certain cases with this language involved situations where the defendant had also engaged in affirmative conduct that this Court viewed as a deliberate attempt to avoid notice of the action, making estoppel appropriate (seeMighty v. Deshommes, 178 A.D.3d at 912–915, 115 N.Y.S.3d 454 ; Wauchope v. Williams, 71 A.D.3d 876, 877, 895 N.Y.S.2d 858 ; Sherrill v. Pettiford, 172 A.D.2d at 512–513, 567 N.Y.S.2d 859 ; see alsoVelasquez v. Gallelli, 44 A.D.3d 934, 935, 844 N.Y.S.2d 361 ). Other cases, however, held that the defendant was estopped from contesting service based solely upon the lack of compliance with Vehicle and Traffic Law § 401(3) or § 505(5), without indicating that the defendant had engaged in any other conduct designed to avoid service (see e.g.Campoverde v. Parejas, 95 A.D.3d 1251, 944 N.Y.S.2d 895 ; Walker v. Reyes, 59 A.D.3d 436, 437, 872 N.Y.S.2d 205 ; Candela v. Johnson, 48 A.D.3d 502, 503, 852 N.Y.S.2d 277 ; Kandov v. Gondal, 11 A.D.3d 516, 783 N.Y.S.2d 57 ; Choudhry v. Edward, 300 A.D.2d 529, 530, 752 N.Y.S.2d 384 ; McCleaver v. VanFossen, 276 A.D.2d 603, 604, 714 N.Y.S.2d 138 ; Billis v. Martz, 259 A.D.2d 458, 458, 684 N.Y.S.2d 883 ; Pumarejo–Garcia v. McDonough, 242 A.D.2d 374, 375, 662 N.Y.S.2d 66 ; Burke v. Zorba Diner, Inc., 213 A.D.2d 577, 579, 623 N.Y.S.2d 932 ).

  2. Santiago v. Rasul

    39 Misc. 3d 5 (N.Y. App. Div. 2013)

    It was uncontested that defendant had failed to comply with this requirement. Thus, defendant was estopped from challenging jurisdiction based on improper service pursuant to CPLR 5015(a)(4)( Kalamadeen v. Singh, 63 A.D.3d 1007, 1009, 882 N.Y.S.2d 437 [2009];accord Wauchope v. Williams, 71 A.D.3d 876, 877, 895 N.Y.S.2d 858 [2010];see also Campoverde v. Parejas, 95 A.D.3d 1251, 944 N.Y.S.2d 895 [2012] ). Similarly, defendant was not entitled to vacatur of the default judgments on the ground of excusable default, under CPLR 5015(a)(1) ( Kalamadeen v. Singh, 63 A.D.3d at 1008–1009, 882 N.Y.S.2d 437).

  3. Zanani v. Schvimmer

    75 A.D.3d 546 (N.Y. App. Div. 2010)   Cited 3 times

    Ordered that the order is affirmed insofar as appealed from, with costs. A party seeking to vacate a default in appearing pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense ( see e.g. Wauchope v Williams, 71 AD3d 876, 877; HSBC Bank USA N.A. v Nuteh 72 Realty Corp., 70 AD3d 998). The appellant failed to meet that burden.

  4. HSBC Mortg. Servs. Inc. v. Campos

    2013 N.Y. Slip Op. 30853 (N.Y. Sup. Ct. 2013)

    A party seeking to vacate a default judgment on the ground of excusable default must establish a reasonable excuse for the default and a potentially meritorious defense to the action. (CPLR 5015[a][1]; Wauchope v Williams, 71 AD3d 876, 877 [2d Dept 2010]; Velasquez v Gallelli, 44 AD3d 934, 935 [2d Dept 2007]; Greene v Mullen, 39 AD3d 469, 469 [2d Dept 2007].)

  5. Allen v. Ahmed

    2013 N.Y. Slip Op. 30198 (N.Y. Sup. Ct. 2013)

    However, the abstract from the Department of Motor Vehicles from November 2007, when the action was commenced, shows defendant's address to be the address where nail and mail service was made. Therefore, the defendant is estopped from challenging the propriety of service, for purposes of showing excusable default as he did not notify the Commissioner of the Department of Motor Vehicles of his change in address prior to the time of service(see VTL § 505(5); Wauchope v Williams, 71 AD3d 876 [2d Dept. 2010]; Kalamadeen v Singh, 63 AD3d 1007 [2d Dept. 2009]; Walker v Reyes, 59 AD3d 436 [2d Dept. 2009]; Velasquez v Gallelli, 44 AD3d at 935 [2d Dept. 2007].). Pursuant to CPLR 317, a person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action by seeking to vacate a default judgment within one year after he obtains knowledge of entry of the judgment upon demonstrating a potentially meritorious defense.

  6. Matiash v. Schwarze

    2012 N.Y. Slip Op. 32033 (N.Y. Sup. Ct. 2012)

    Although defendant claims that he was a resident of New Jersey on that date, he did not change his address with the New York State Commissioner of Motor Vehicles as required by VTL §505(5). Generally, under these circumstances, the defendant would be estopped from contesting the validity of service based upon personal service that was made at the address listed with the DMV pursuant to CPLR 308(2)(see Wauchope v Williams, 71 AD3d 876 [2d Dept. 2010]; Velasquez v. Gallelli, 44 AD3d 934 [2d Dept. 2007]; Choudhry v. Edward, 300 AD2d 529[2d Dept. 2002]). However, under the circumstances of this case, the defendant is not estopped from contesting personal jurisdiction because here the Court lacks a jurisdictional basis to obtain personal service over defendant Samuel R. Ra.