DISCOVER BANK v. HUNG (2020)

BACKGROUND AND PROCEDURALHISTORY

Plaintiff commenced this action against pursuant to a summons and complaint filed on January 17, 2017, seeking a judgment in the amount of $14,989.56, based on defendant's failure to pay sums due on a credit card.

Service was made by conspicuous place delivery to a “Jane Doe” at 141 West 73rd Street, Apt 12G, New York, New York 10023 on March 4, 2017 at 9:14 pm. The affidavit indicates that the person served refused to give her name. The individual is described as an Asian female, with black/brown hair, approximately 40 years of age and weighing between 141 and 160 lbs, who wore glasses. The affidavit of service further states the address for defendant was confirmed through a New York State DMV abstract. A subsequent mailing was done on March 8, 2017.

Proof of service was filed on March 9, 2017.

Defendant never answered or appeared, and on May 3, 2017, a default judgment was entered against her in the amount of $15,262.56.

THE PENDING MOTION

On August 11, 2020, Defendant appeared pro se, and moved for an order vacating the judgment. Plaintiff filed opposition and on August 20, 2020, the parties appeared for argument via Skype. Counsel for defendant appeared and requested an adjournment to submit supplemental motion papers. The request was granted and the motion was adjourned to August 28, 2020 for submission only. Supplemental papers were submitted by defendant on August 27, 2020 and on August 28, 2020, the motion was deemed submitted and the court reserved decision.

FACTS

CPLR § 5015(a) permits a default to be vacated upon lack of personal jurisdiction [CPLR § 5015(a)(4)] or excusable default and meritorious defense [CPLR § 5015(a)(1)]. Every application to vacate a default judgment under CPLR § 5015(a) is discretionary in nature, and requires the court to consider the particular facts of the case at bar, include the equities effecting each party (Nash v. Port Authority of New York and New Jersey 22 NY3d 220). “To vacate a default a party must demonstrate a justifiable excuse for the default and a meritorious defense. There must be a sufficient factual showing to support such claims (Mandell v. Stein 183 AD2d 488).”

Defendant states that she moved to Taiwan in July 2015, and did not return to the United States for over four years, and was not physically present in New York during that four year period. Defendant states that she did not file an answer in this action because she was “out of town” at the time she should have filed an answer. Defendant provides a passport showing she had a visa and was in Taiwan in and around the time of service.

In her moving papers, defendant did not state whether she knows the person to whom the papers were delivered, and she provided no details as to her relationship to the address which was served. In her reply, she acknowledges that she lived at said address through 2015, and that the individual alleged served could have been her mother. While her mother states she does not remember receiving the papers, she does not deny receipt of the papers. Additionally her mother is an Asian women, with the same color hair who wears glasses, the fact that the age and the height and weight were somewhat off, is not sufficient to dispute the process servers affidavit.

Annexed to the opposition papers is an abstract of defendant's driving record from the New York State Department of Motor Vehicles. It shows that as of January 31, 2017, defendant's license listed the address that was served, and the license was valid through August 25, 2020.

Vehicle and Traffic Law § 505(5) requires that every motor vehicle licensee notify the Commissioner of Motor Vehicles of any change of residence within 10 days of the change. A party who fails to comply with this provision will be estopped from challenging the propriety of service which is made to the former address (see, Sherrill v. Pettiford, 172 AD2d 512, 567 N.Y.S.2d 859). In this case, the defendant acknowledged that (she) moved from (her) prior address ․ and thus admittedly failed to comply with this statutory mandate. The defendant is therefore estopped from raising a claim of defective service ․ (see, Feinstein v. Bergner, 48 NY2d 234, 241, 422 N.Y.S.2d 356, 397 N.E.2d 1161; Sherrill v. Pettiford, supra; Kramer v. Ryder Truck Rental, 112 AD2d 194, 490 N.Y.S.2d 863).

Pumarejo-Garcia v. McDonough, 242 AD2d 374, 375 (1997).

To the extent that the motion is made pursuant to CPLR 5015(a)(4), based on lack of personal jurisdiction, it is denied, as the defendant is estopped from challenging the propriety of service due to her failure to comply with Vehicle and Traffic Law § 505(5) [Kalamadeen v. Singh, 63 AD3d 1007, 1008—09 (2009)].

A default judgment may also be vacated pursuant to CPLR 317, where the defendant was served by a method other than personal delivery and did not actually receive notice of the summons in time to defend, provided that the defendant has a meritorious defense (see Thakurdyal v. 341 Scholes St., LLC, 50 AD3d 889, 855 N.Y.S.2d 641), or pursuant to CPLR 5015(a)(1) based on a showing of excusable default and a meritorious defense.

However, defendant does not sufficiently allege any meritorious defense. Defendant does not deny that she had this credit card or that amounts were unpaid on the account. Instead, defendant states that because an address used by plaintiff in its post judgment execution efforts is unrelated to defendant “ ․ I am looking into identity theft and credit card fraud due to the suspicious nature of the address listed.” This allegation is entirely too speculative to warrant vacating the default judgment.

Based on the foregoing, the motion is denied, and all stays are vacated.

This constitutes the decision and order of the Court.

Sabrina B. Kraus, J.