Opinion
No. 10606/12.
2013-03-20
Jason WIMBERLY, Petitioner, v. NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, Respondent.
Jason Wimberly, pro se. Eric T. Schneiderman, Attorney General of the State of New York; Elizabeth Prickett–Morgan, Associate Attorney General, for Respondent.
Jason Wimberly, pro se. Eric T. Schneiderman, Attorney General of the State of New York; Elizabeth Prickett–Morgan, Associate Attorney General, for Respondent.
DAVID I. SCHMIDT, J.
Petitioner pro se Jason Wimberly moves by order to show cause to vacate the default judgment entered against him and restore this proceeding to the calendar. Besides opposing the motion, Respondent the New York State Department of Taxation and Finance moves to quash a subpoena, dated November 19, 2012, that was directed to Respondent but was served by Petitioner on the New York State Office of the Attorney General.
Petitioner previously commenced an Article 78 proceeding on May 21, 2012 to obtain judicial review and vacatur of Respondent's determination that Petitioner was personally liable for the payment of certain taxes and/or penalties and the subsequent docketing of a tax warrant against Petitioner due to non-payment of the same.
For the following reasons, Petitioner's application is denied and Respondent's motion is granted.
I. Background
Petitioner commenced this proceeding pursuant to CPLR Article 78 and appeared before the court on July 17, 2012. At that appearance, the return date for his petition was adjourned to August 15, 2012. Respondent filed a cross motion to dismiss the proceeding as untimely and for lack of personal jurisdiction, returnable on the same date.
Subsequently, Petitioner failed to appear on August 15, 2012, or to request an adjournment. Nevertheless, the court exercised its discretion and issued an order adjourning the return date of the pending motions to September 10, 2012, directing that if Petitioner did not appear on that date, the instant proceeding would be dismissed. See Order dated August 15, 2012 (“In the event plaintiff defaults in appearing that day [September 10, 2012], the case will be dismissed or a default will be entered....”). Petitioner was served with the August 15, 2012 Order by first class mail on August 17, 2012. See affirmation of service, annexed as Ex. A to Respondent's Memorandum of Law in Opposition to Motion to Vacate Default. Thus, it cannot be said that Petitioner was ignorant of the consequences of failing to seek an adjournment or failing to appear on the adjourn date.
Petitioner again failed to appear on September 10, 2012, or to request an adjournment of that date. Consequently, the Court issued an order: (i) dismissing this proceeding due to Petitioner's repeated defaults, and (ii) granting Respondent's cross motion to dismiss the underlying proceeding on the ground that it was time-barred. See Order dated September 10, 2012.
On October 25, 2012, Petitioner submitted the instant application requesting that the Court vacate the default judgment and restore the proceeding to the calendar.
II.Discussion
Pursuant to CPLR 5015(a)(1), a court has discretion to vacate a default judgment where there has been an “excusable default” by the party seeking vacatur. “A party seeking to vacate an order entered upon his or her default is required to demonstrate, through the submission of supporting facts in evidentiary form, both a reasonable excuse for the default and the existence of a meritorious cause of action.” Nowell v. NYU Med. Ctr., 55 AD3d 573, 573 (2d Dept 2008) (internal quotation marks and citation omitted). The determination of what constitutes a reasonable excuse is left to the sound discretion of the court. Id. (citation omitted). “When exercising its discretion in this regard, a court should consider such relevant factors as the extent of the delay, prejudice or lack of prejudice to the opposing party, and lack of willfulness, as well as the strong public policy in favor of resolving cases on the merits.” Orwell Bldg. Corp. v. Bessaha, 5 AD3d 573, 574 (2d Dept 2004) (inner quotation marks and citations omitted).
Petitioner moves to vacate the default judgment, primarily on the grounds set forth in the his affidavit, sworn to on October 23, 2012, that, inter alia, Petitioner “suffer[s] from a Developmental Disability; [i]s unemployed and with no means of support needed to secure employment and had several interviews; [is] a complaining witness in a criminal matter ... that is ongoing; [is] the victim of domestic violence; [has] difficulty with travel ... and wishes to make the court aware that he has exercised due diligence by applying for paratransit services.”
In response, Respondent maintains that Petitioner has failed to meet his burden to vacate a default judgment pursuant to CPLR 5015(a)(1) as Petitioner has not demonstrated either a reasonable excuse for the default or the existence of a meritorious cause of action. Specifically, Respondent contends that Petitioner provides no particularized reason for his failure to appear on either August 15, 2012 or September 10, 2012 and that his general allegations of health problems, domestic violence and transportation difficulties, are not connected in any concrete way to his two failures to appear on the return date. Respondent further contends that the documents Petitioner submits demonstrate that, rather than suffering from a disability, Petitioner was capable, during the relevant time period, of applying for a job, interviewing for it, and receiving an offer of employment. Respondent also points out that nothing in Petitioner's affidavit in support of his motion to vacate his default, addresses whether Petitioner has a meritorious cause of action.
A claim alleging a reasonable excuse should be supported by a “detailed and credible” explanation of the default at issue. Byers v. Winthrop Univ. Hosp., 100 AD3d 817, 818 (2d Dept 2012). “Conclusory, undetailed, and uncorroborated” allegations are insufficient. Lugauer v. Forest City Ratner Co., 44 AD3d 829, 830 (2d Dept 2007).
To meet this standard, Petitioner submits a myriad of documents, including: (i) a Stipulation of Settlement and accompanying Decision and Judgment both dated July 13, 2010, memorializing Petitioner's agreement to vacate premises owned by Etienne Correa; (ii) a series of e-mails between Petitioner and Joanna Ascani, a talent consultant at a staffing firm, appearing to show, inter alia, that Petitioner was searching for employment and had a telephone interview for a job scheduled for August 15, 2012; (iii) an Offer of At–Will Employment from Media Planet signed by the Petitioner providing, inter alia, that the Petitioner's effective date of hire was September 18, 2012; (iv) a letter from Elise Mullins dated September 25, 2012, arranging an appointment to determine Petitioner's eligibility for paratransit services; (v) a letter from Carl W. Bazil, M.D., dated August 1, 2011, stating that Petitioner has been diagnosed with obstructive sleep apnea and narcolepsy, and requires treatment for both conditions; and (vi) a Temporary Order of Protection, dated September 11, 2012, requiring Jordan L. March to refrain from any contact with Petitioner. None of these documents, however, are sufficient to demonstrate a reasonable excuse for Petitioner's prior non-appearances.
While Petitioner offers a letter from his physician as proof of a medical condition, nowhere does it state that Petitioner was incapacitated by his ailments such that Petitioner was prevented, by reason of his condition, from appearing on either August 15, 2012 or September 10, 2012. See e.g. Brown v. Brown, 148 A.D.2d 377, 380 (1st Dept 1989). With regard to the documents evidencing Petitioner's search for employment and the order of protection, this court's review of that documentation fails to substantiate or corroborate any reason why Petitioner was not present on either of the aforementioned dates as none of these dated documents conflict with the same or explain why he could not contact the court and request an adjournment.
Additionally, this Court cannot overlook the fact that Petitioner appeared on July 17, 2012, knowing full well that the return date of his petition was on August 15, 2012, yet Petitioner's efforts to gain paratransit services, as evidenced by Elise Mullins's letter dated September 25, 2012, were made following Petitioner's defaults. Consequently, Petitioner has not met his burden of demonstrating a reasonable excuse for his default.
On reply, Petitioner attempts to offer, for the first time, what appears to be a new explanation for his default. Specifically, Petitioner submits the affidavit of Farrah Bastien, sworn to December 5, 2012, in which she attests that she resides with Petitioner and witnessed Petitioner lose consciousness on September 10, 2012 “for a brief period of time”—a fact Petitioner never asserted in his moving affidavit to explain his non-appearance. As this testimony is improperly offered for the first time on reply, it must be disregarded. See Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827 (2d Dept 2008) (“function of reply papers is to address arguments made in opposition to the position taken by the movant, not to permit the movant to introduce new arguments or new grounds for the requested relief”).
Under these circumstances, where a party fails as a matter of law to proffer a reasonable excuse for his default, the motion to vacate the default must be denied, regardless of whether he can demonstrate a potentially meritorious claim. Mjahdi v. Maguire, 21 AD3d 1067, 1068 (2d Dept 2005).
However, even if the court were to consider the issue of a meritorious claim the court would conclude that Petitioner likewise fails to satisfy that requirement.
In challenging the docketing of a tax warrant against him, Petitioner asserts that he was not properly notified of the liability underlying it before it was docketed. Specifically, Petitioner alleges in his petition, that “all notifications prior to the issue of the warrant were not received because [Petitioner] was not living at the address the forms were sent to (359 Monroe Street, Brooklyn, New York). [Petitioner] ha[s] not resided at that address since July of 2010. [Petitioner] did not have any awareness of [the] debt owed. Several state databases had alternative addresses for [Petitioner]. [Petitioner] did not receive due process.” See Petition dated May 16, 2012.
As an initial matter, Petitioner cannot maintain his petition because this court has not acquired personal jurisdiction over Respondent. CPLR 307(2) contain the rules for service of process on a state official or state agency. That section provides, in pertinent part, that personal jurisdiction over such officer of agency is accomplished by:
“(1) delivering the summons to the chief executive officer of such agency or to a person designated by such chief executive officer to receive service, or (2) by mailing the summons by certified mail, return receipt requested, to ... the chief executive officer of such agency, and by personal service upon [an assistant attorney-general at an office of the attorney-general or the attorney-general within the state]. Service by certified mail shall not be complete until the summons is received in a principal office of the agency and until personal service upon [an assistant attorney-general at an office of the attorney-general or the attorney-general within the state] is completed.”
CPLR 307(2). Thus to effect service on a state agency, a party must follow one of two methods. He or she must either: (i) personally serve the chief executive of that agency or his or her designee; or (ii) serve such person or the chief executive by certified mail, return receipt requested and personally serve the attorney general or an assistant attorney general at the attorney general's office. According to Respondent, its Office of Counsel, in Albany, New York is designated as the agent to accept service on its behalf. See affirmation of Margaret Neri, dated August 10, 2012 (Neri aff.), ¶ 11.
Petitioner does not provide any offer of proof that he complied with the requirements of CPLR 307(2) and does not dispute Respondent's contention that he has only served the Office of the Attorney General with the petition and not the agency. Id. ¶ 12. However, service of the petition on the Office of the Attorney General alone does not give the Court personal jurisdiction over Respondent. See Matter of Schachter v. Sobol, 213 A.D.2d 551, 552 (2d Dept 1995). Therefore, the service of process upon the Attorney General without service upon Respondent or the agent specifically designated to receive process on its behalf was inadequate to gain personal jurisdiction over Respondent, requiring the dismissal of the instant proceeding. See Rego Park Nursing Home v. State of NY, Dept. of Health/Bur. of Residential Health Care Facility Reimbursement, 160 A.D.2d 923, 924 (2d Dept 1990), affd sub nom, 77 N.Y.2d 942 (1991); Matter of Duroseau v. Johnson, 289 A.D.2d 489, 490 (2d Dept 2001).
For the same reason, Petitioner's service on the Office of the Attorney General of a subpoena directed to Respondent has no force or effect. SeeCPLR 2303 (requiring that “[a] subpoena ... shall be served in the same manner as a summons”). Accordingly, the subpoena dated November 19, 2012 is quashed.
Petitioner additionally fails his burden of demonstrating a meritorious claim because the petition was filed on May 21, 2012 more than four months after Petitioner received notice of the docketing of the Warrant. As such, the petition to vacate the warrant is time-barred pursuant to CPLR 217(1).
Significantly, Petitioner does not dispute that challenges to state governmental actions are governed by the four-month limitations period set forth in CPLR 217. Instead, Petitioner contends that the applicable limitations period was tolled due to his purported insanity from an unnamed neurological disability.
CPLR 208 in conjunction with CPLR 217(1) provides for a two-year toll of the statute of limitations where the person entitled to commence an Article 78 proceeding is under a disability due to insanity at the time the cause of action accrues. See Seppala v. Meadowbrook Care Ctr., Inc., 292 A.D.2d 368, 368 (2d Dept 2002); 6 N.Y. Jur.2d, Article 78 § 197. In evaluating the scope of its application, the Court of Appeals examined the legislative history of CPLR 208, determining that the Legislature intended the toll for insanity to be narrowly interpreted. McCarthy v. Volkswagen of Am ., Inc., 55 N.Y.2d 543, 548 (1982). Therefore, an individual will be considered disabled for the purpose of benefitting from the toll, only if that person is “unable to protect their legal rights because of an over-all inability to function in society.” Id. Accordingly, a disability for the purposes of tolling “depends less on the proper medical classification of the state of the claimant's mental health (normal, neurotic, psychotic or borderline'), and more on a matter of pragmatic assessment of whether the claimant can manage his or her personal affairs.” McBride v. County of Westchester, 211 A.D.2d 792, 794 (2d Dept 1995).
Here, the aforementioned documentation proffered by Petitioner in an effort to establish a reasonable excuse for his two non-appearances, cannot be reconciled with Petitioner's claims of insanity. Petitioner's communications with a staffing firm clearly evidence Petitioner's ability to manage his personal affairs and his overall ability to function in society. Additionally, the proffered letter from Elise Mullins dated September 25, 2012, in reference to Petitioner's conversation with a Paratransit Representative arranging an appointment to determine his eligibility for Paratransit services and the Stipulation of Settlement dated July 13, 2010 with his former landlord, further demonstrates Petitioner's ability to manage his personal affairs.
In the face of documentary evidence, submitted by Petitioner, clearly demonstrating his ability to function in society, this court finds Petitioner's claim that he is entitled to the two-year toll afforded by CPLR 208 untenable. Accordingly, Petitioner had only the four months provided by CPLR 217 to challenge Respondent's determination of his liability.
In this regard, the warrant that Petitioner challenges was docketed on October 19, 2011, and a copy was mailed to Petitioner on October 21, 2011. See Neri aff., ¶ 8 and Exs. E, F, and G. In addition, there is documentary evidence that Petitioner contacted Respondent by telephone in relation to the warrant on November 16, 2011. Id. ¶ 10 and Ex. H. Significantly, Petitioner has made no denial of receipt of the determination. Thus, his time within which to commence the Article 78 proceeding to review Respondent's determination expired four months after October 21, 2011, that is, on February 21, 2012. See Matter of Richardson v. New York City Hous. Auth., 89 AD3d 1091, 1092 (2d Dept 2011). Accordingly, the commencement of the proceeding on May 21, 2012 was untimely.
Although determinations of actions on the merits are favored (N & J Foods v. Shopwell Plaza Corp., 63 A.D.2d 899, 899–90 [1st Dept 1978] ), given the facts and circumstances of the instant matter, “this preference will not justify vacating a default judgment where the moving party fails to satisfy the two prong burden of showing a meritorious defense and a reasonable excuse for the default.” Dimitratos v. City of New York, 180 A.D.2d 414, 414 (1st Dept 1992).
Accordingly, it is
ORDERED that Petitioner Jason Wimberly's motion to vacate the default judgment entered against him is denied; and it is further
ORDERED that Respondent New York State Department of Taxation and Finance's motion to quash Petitioner's subpoena is granted.