American Express National Bank, Plaintiff, v. Diego Santiago, Defendant. (2026)

In an action arising from a default on a credit card agreement, defendant filed an Order to Show Cause (Motion Seq. No. 1) to vacate the default judgment entered by the Westchester County Clerk on April 28, 2025 (NYSCEF Doc. Nos. 14 & 54), pursuant to CPLR 5105 (a), to stay further enforcement pursuant to CPLR 5240, declare the judgment void, return all funds seized from defendant, dismiss the action, and grant a traverse hearing on the grounds that the defendant was not properly served pursuant to CPLR 308 (2). The Order to Show Cause was signed on November 26, 2025. A motion conference was scheduled for December 5, 2025, and adjourned to January 5, 2026.

The Court considered the following papers in connection with the defendant's motion:

PAPERS NYSCEF Doc. No.

Affirmation of Service 4

Order to Show Cause (Motion Seq. No. 1)/Affirmation in Support (Jerome G. Lee, Esq.)/Exhibits A-D 29-34

Affidavit in Support (Santiago, defendant)/Exhibits 1-3/ Memorandum in Support (Jerome G. Lee, Esq.) 35-39

Affirmation in Opposition (Robert Ross, Esq.) 51Reply Affirmation in Support (Jerome G. Lee, Esq.) 59

FACTUAL HISTORY

Plaintiff commenced the instant action on October 3, 2024 seeking a judgment in the amount of $15,726.04 against defendant for an unpaid credit card balance (NYCEF Doc. No. 1). Plaintiff served the defendant with a copy of the summons and complaint on October 7, 2024 by personal service at 13 Van Wyck Street Floor 2, Ossining, NY 10562 (NYSCEF Doc. 4). On April 28, 2025, the Westchester County Clerk entered a default judgment against defendant in the amount of $16,050.79, as the defendant had not appeared and the time to answer had expired (NYSCEF Doc. Nos. 14 & 54).

Thereafter, defendant appeared by his counsel on July 1, 2025, and a notice of appearance was filed on said date (NYSCEF Doc. No. 15). On November 26, 2025, defendant filed an order to show cause (NYSCEF Doc. No. 29), which was signed on said date and filed in NYSCEF on December 1, 2025 (NYSCEF Doc. No. 42). The affirmation in support filed by defendant's counsel asserts that "approximately $32,000" was seized from defendant's bank accounts and further asserts that defendant was never properly served. Defendant's counsel avers that defendant no longer owned and did not reside at the property located at 13 Van Wyck Street Floor 2, Ossining, NY 10562 when he was purportedly served by the process server at said location (NYSCEF Doc. No. 30). Defendant Diego Santiago also filed an affirmation with exhibits (NYSCEF Doc. Nos. 35-38). Defendant's counsel filed a memorandum of law in support of defendant's motion (NYSCEF Doc. No. 39). Plaintiff filed a memorandum of law in opposition on January 2, 2026, and argued that the defendant was properly served (NYSCEF Doc. No. 51). Defendant filed a reply on January 5, 2026 (NYSCEF Doc. No. 59), further arguing that vacatur of the default judgment is proper pursuant to CPLR 5015 (a) (4) for lack of personal jurisdiction.

ANALYSIS

The Court has considered the papers referenced above, including the affirmation in support made by defendant Diego Santiago (NYSCEF Doc. No. 35) and the process server's affidavit of service (NYSCEF Doc. No. 4).

Relying on CPLR 308 (2), defendant argues that service upon defendant at the property located 13 Van Wyck Street, Ossining, NY 10562 was improper, as service was not made at defendant's "dwelling place, usual abode, nor business address." As noted, defendant is relying on the language of CPLR 308 (2), which outlines the requirements for substituted service, as opposed to personal service effectuated within the state under CPLR 308 (1). In the memorandum of law in opposition, plaintiff argues that notwithstanding defendant's denial as to service, the defendant failed to provide proof of his residence at the time. Regardless of his residency, plaintiff notes that the defendant was personally served at the location indicated in the affidavit of service (NYSCEF Doc. No. 51). The Court finds that defendant's assertions are conclusory and unsubstantiated.

CPLR 308 (1) states that personal service can be made upon a natural person "by delivering the summons within the state to the person to be served." CPLR 308 (1) does not require the person served to own the property, or to live at the location of service, but instead requires only that the service is made directly upon the person to be served within the state. That was the case herein.

Defendant also argues that a traverse hearing is necessary to determine if service was proper (NYSCEF Doc. No. 29). The court disagrees. In Nationstar Mortgage LLC v Cohen, the Appellate Division, Second Department, reversed an order requiring a traverse hearing to determine if service was proper (Nationstar Mtge., LLC v Cohen, 185 AD3d 1039 [2d Dept 2020]). The Second Department found that conclusory statements alleging defendant was not served, contained in the defendants' submissions, were not enough to overcome the affidavits of service submitted by the process server (id. at 1041). In the case at bar, the defendant's affidavit contains similar conclusory and unsupported statements (NYSCEF Doc. No. 35). In that regard, defendant's affidavit states that since January 2017 he has "lived in the Dominican Republic" and since then has only visited New York "occasionally for personal and business matters" (NYSCEF Doc. No. 35, ¶ 17). The defendant further claims that he can provide proof of his location on the date of service through "passport pages showing [his] entry and exit stamps, rental receipts, and utility bills from the apartment in the Dominican Republic" (id. at ¶ 28). Notably, the defendant did not provide any such proof in support of his motion. Instead, defendant provided copies of documents related to the sale and closing for the property at 13 Van Wyck Street Ossining, New York 10562 (NYSCEF Doc. Nos. 36-38). These documents do rebut the argument that defendant was personally served on October 3, 2024 while present in the State of New York. In short, defendant simply failed to demonstrate that he was not personally served, as reflected in the process server's affidavit of service. In this vein, the subject affidavit of service specifically notes that defendant's "identity was confirmed by subject saying yes when named" and the person accepted direct delivery (NYSCEF Doc. No. 4). Notably, the process server provided a detailed physical description of the defendant in the affidavit of service, which is not disputed by defendant. As such, plaintiff's service of the summons and complaint upon the defendant meets the requirements for personal service pursuant to CPLR 308 (1). Having been properly served, and having failed to answer in a timely manner, the Westchester County Clerk properly entered the default judgment against the defendant.

The court has considered the defendant's remaining contentions, despite the absence of any specific reference thereto, and finds them to be without merit or rendered moot by certain aspects of this decision and order.

CONCLUSION

Accordingly, it is hereby

ORDERED, that defendant's motion moving to vacate the default judgment pursuant to CPLR 5105 (a), stay further enforcement pursuant to CPLR 5240, declare the judgment void, return all funds seized, dismiss the action, and grant a traverse hearing on the grounds that the defendant was not properly served, is DENIED.

The foregoing constitutes the Decision and Order of the Court.Dated: White Plains, New York

Dated: April 2, 2026

White Plains, New York

ENTER:

HON. WALTER RIVERA, J.S.C.

Walter Rivera, J.