JPMorgan Chase Bank, N.A., Plaintiff(s) v. Dwight Smith, Defendant(s) (2026)

This action was commenced by plaintiff JPMorgan Chase Bank, N.A. by summons and complaint filed on March 5, 2024 for breach of a consumer credit agreement (credit card) whereby plaintiff sought a money judgment against the defendant Dwight Smith for $5,020.48.

Plaintiff obtained a judgment on default for the full amount sought which was entered on February 22, 2025. Defendant thereafter moved by order to show cause to vacate the judgment, permitting the filing of an answer or placing the case on the calendar which was returnable November 7, 2025. In his proposed answer, defendant denied that he was properly served. On November 7, 2025, the motion was adjourned to April 27, 2026 for plaintiff to file opposition. Plaintiff filed written opposition and after oral argument was held before this Court on April 27, 2026, an interim order was issued granting the motion to the extent that a traverse hearing be held to determine whether defendant was properly served.

The traverse hearing was held on August 10, 2026. Plaintiff appeared by counsel and called its process server as a witness. Defendant appeared self-represented. Plaintiff admitted three documents into evidence and defendant admitted four photographs into evidence. Based upon the testimony and evidence adduced at the hearing, the Court finds and decides as follows:

According to plaintiff's affidavit of service, the summons and complaint were served on the defendant by affixing to the defendant's residence door on April 29, 2024 at 1:04 PM at 140 Van Cortlandt Ave W Apt 3C, Bronx, New York, NY 10463-2710 after three prior unsuccessful attempts to serve the defendant personally pursuant to CPLR § 308[4] (Plaintiff's Exhibit 1). The affidavit of service was made by Wendys Feliz, who further states that she mailed the summons and complaint after it was affixed to defendant's door on April 30, 2024. Ms. Feliz specifically describes the defendant's apartment door as follows:

"To the right of elevator, beige metal door, beige concrete wall, granite tile floor; I made diligent attempts to serve the documents in accordance with CPLR 308 1 or 308 2 but was unsuccessful I was unable to determine place of employment."

There is no dispute that 140 Van Cortlandt Ave W Apt 3C, Bronx, New York, NY 10463-2710 was the defendant's address at all relevant times. However, there is a dispute as to whether the door which Ms. Feliz claims she affixed the summons and complaint to was the door to said apartment. Plaintiff admitted a photograph into evidence which Ms. Feliz testified depicted the door at which she effectuated service. Ms. Feliz did not credibly testify that she correctly identified the door as Apartment 3C; she admitted that the door she served did not display '3C' and she could not recall how she concluded it was the correct apartment, whether by process of elimination or asking a neighbor.

Defendant, however, credibly testified that the photograph he took of the door to his apartment in September 2025 when he first learned about this case accurately depicts the way the door appeared in April 2024 (Defendant's 1). Defendant's photograph shows '3C' clearly labeled on the door. Further, defendant credibly testified that the description of his apartment location did not match the description Ms. Feliz included in her affidavit of service, as evidenced by the photos defendant submitted into evidence (Defendant's 2-4). Moreover, defendant credibly testified that at each of the three times Ms. Feliz attempted service, he was at work.

Finally, plaintiff did not submit any logbook or other paper or electronic records to substantiate her claims as to service on the date in question. Pursuant to Uniform Rules for the New York State Trial Courts § 208.29 entitled "Traverse hearings":

"Whenever the court has scheduled a hearing to determine whether process was served validly and timely upon a party, and where a process server will testify as to the service, the process server shall be required to bring to the hearing all records in the possession of the process server relating to the matter at issue. Where the process server is licensed, he or she also shall bring the license to the court."

The Court asked Ms. Feliz if she brought her logbook with her, to which she responded that her records are stored electronically but she admitted that she did not bring them to the hearing. Logbooks can be electronically maintained and "are an important resource for the cross-examination of a process server" (Leifer v Moskowitz, 77 Misc 3d 720 [Civ Ct, NY Co 2022]). Based upon this lack of corroborating evidence, as well as Ms. Feliz' inability to recall how she identified the door in question as the door to Apartment 3C, the photograph submitted by plaintiff, which allegedly depicted defendant's door, lacks any indication that it is the door to Apartment 3C. Based upon defendant's more credible testimony as to the location of his apartment door within the building, traverse is sustained and this action must be dismissed.

Accordingly, it is hereby

ORDERED that after a traverse hearing, traverse has been sustained; and it is further

ORDERED that the judgment entered on February 22, 2025 in favor of plaintiff against defendant for $5,020.48 is vacated and all liens and restraints are hereby lifted; and it is further

ORDERED that this action must be dismissed and the Clerk is directed to enter judgment accordingly; and it is further

This constitutes the decision and order of the Court.

Date: August 10, 2026

Hon. Eric J. Wursthorn, J.C.C.

Eric J. Wursthorn, J.