LLC v. Xavier Wilkie, Defendant. (2026)

The e-filed papers bearing NYSCEF Doc. Nos. 14-33 were read on the motion of defendant Xavier Wilkie (the "Defendant") brought by order to show cause for an order: (1) pursuant to CPLR 5015(a) (4) and CPLR 3211(a)(8), vacating the judgment entered on May 2, 2025, and dismissing the action.

I. Background

The Plaintiff, Troy Capital, LLC ("Plaintiff"), commenced this consumer credit action against the Defendant on October 16, 2024 (NYSCEF Doc. No. 1). On May 2, 2025, a clerk's judgment was entered on default against the Defendant in the amount of $8,196.38 (the "Judgment"; Doc. No. 13).

On August 15, 2025, the Defendant moved by order to show cause to vacate the Judgment and to dismiss the action alleging lack of personal jurisdiction. In her motion, the Defendant avers that on October 31, 2024, the date of service, she was no longer living at 183-09 Elmira Avenue, Saint Albans, New York. The Defendant avers that on April 1, 2023, she moved to 150-42, 72nd Drive, Apt. 3H, Flushing, New York 11367, where she has lived uninterrupted to today. To corroborate her claim, the Defendant submits a 2024 Lease Renewal letter dated April 19, 2024, for the Flushing apartment that is addressed to her and a rental assistance approval letter from the NYC Department of Social Services for the year commencing on April 1, 2024, for the Flushing apartment (see Doc. No. 14). Accordingly, the Defendant contends that substituted service on her was not proper as she did not reside on Elmira Avenue when service is alleged to have occurred.

In opposition to the motion, the Plaintiff contends, as relevant here, that the Defendant's submission does not rebut the process server's affidavit which avers that the Defendant was served at 183-09 Elmira Avenue pursuant to CPLR 308(2)—the address identified on the Defendant's New York State Department of Motor Vehicles (the "DMV") abstract. The Plaintiff further urges that to the extent the address listed on the DMV abstract was not the Defendant's address at the time of service than the Defendant failed to update her address with the the DMV as required by section 505(5) of the New York Vehicle and Traffic Law (the "VTL") and, therefore, she is estopped from arguing that she did not reside at 183-09 Elmira Avenue, Saint Albans, New York at the time of service.

II. Discussion

As a threshold matter, the Court first turns to the Plaintiff's contention that the Defendant should be estopped from asserting that she did not reside at 183-09 Elmira Avenue, Saint Albans, New York, solely because she did not update her address with the DMV as required pursuant to VTL § 505(5). In 2023, the Appellate Division Second Department took up this very issue to clarify inconsistent case law that developed in the Second Department. In Castillo-Florez v Charlecius (220 AD3d 1, 3-4 [2d Dept 2023]), the Court opened its remarks with the question presented as follows:

The principal question presented on this appeal is whether an individual defendant's failure to fulfill the statutory obligation to timely notify the New York State Department of Motor Vehicles (hereinafter DMV) of a change of address, standing alone, estops that defendant from contesting service of the summons and complaint made at his or her former address. We answer that question in the negative.

In reaching its determination the Court explained (220 AD3d at 4) that:

[W]hile there are circumstances where a defendant may be estopped from contesting service of process based in part on the failure to update his or her address with the DMV, such as where the defendant engages in a deliberate attempt to avoid service, the mere failure to update one's address with the DMV, standing alone, does not automatically warrant application of the estoppel doctrine.

In its summation, and to remove any doubt, the Second Department, in Castillo-Florez, declared that "[t]o the extent our prior decisions, including those previously cited herein, conflict with this principle, they should no longer be followed for that proposition" (220 AD3d at 13).¹ Stated differently, to invoke estoppel, the critical question, as the Court explained, is not whether a defendant failed to update their address, but rather whether there is evidence that the defendant engaged in conduct that could be considered a deliberate attempt to avoid service.

Several recent Second Department decisions have reinforced the directive in Castillo-Florez (see Sidney v Genova, 241 AD3d 1492, 1494 [2d Dept 2025] ["the defendant's failure to update his address with a city agency did not constitute 'affirmative conduct,' and such failure was insufficient to establish, without a hearing, that the defendant should be estopped from contesting service as a matter of law"]; CitiMortgage, Inc. v Goldstein, 230 AD3d 1219, 1222 [2d Dept 2024] ["a defendant's mere inaction—such as failing to update his or her address with the plaintiff, the Department of Motor Vehicles (hereinafter DMV), or the United States Postal Service (hereinafter USPS)—without more, may not be equated with affirmative or deliberate conduct designed to avoid service"]; Legal Servicing, LLC v Carty, 229 AD3d 533 [2d Dept 2024] [following the holding of Castillo-Florez]; Yoo v Good Clean Fun, 222 AD3d 793, 795 [2d Dept 2023] [following the holding of Castillo-Florez]). Accordingly, the law is now clear in the Second Department that "[c]ontrary to the [P]laintiff's contention, the [D]efendant's failure to update [her] address with the Department of Motor Vehicles, standing alone, [does] not estop [her] from contesting service" (Yoo, 222 AD3d at 795).

Having addressed the threshold issue, the Court now turns to the Defendant's challenge to the propriety of service. "Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308" (HSBC Mtge. Corp. (USA) v Hollender, 159 AD3d 883 [2d Dept 2018]). "The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void" (Christiana Tr. v Mauro, 191 AD3d 756, 757 [2d Dept 2021]). Thus, "[u]nlike a motion predicated upon excusable default (see CPLR 5015 [a] [1]), a defendant moving pursuant to CPLR 5015 (a) (4) need not demonstrate a reasonable excuse for the default or a potentially meritorious defense" (Bank of Am., N.A. v City of New York Dept. of Hous. Preserv. and Dev., 211 AD3d 661, 663 [2d Dept 2022]). "Under CPLR 5015 (a) (4), a default must be vacated once lack of personal jurisdiction has been established" (Bank of Am., N.A., 211 AD3d at 663).

"Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Brownstone Capital NY, LLC v Lindsay, 183 AD3d 687, 688-89 [2d Dept 2020]). "To be entitled to vacatur of a default judgment under CPLR 5015 (a) (4), a defendant must overcome the presumption raised by the process server's affidavit of service" (Brownstone Capital NY, LLC, 183 AD3d at 688-89). "A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service" (Deutsche Bank Nat. Tr. Co. v O'King, 148 AD3d 776, 776-77 [2d Dept 2017]). "If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary. At the hearing, the burden is on the plaintiff to prove jurisdiction by a preponderance of the evidence" (Deutsche Bank Nat. Tr. Co., 148 AD3d at 777).

Here, the Defendant, through her affidavit and corroborating documents sufficiently rebutted the presumption created by the affidavit of the process server that the Defendant resided at the address on Elmira Avenue when process was served. Accordingly, under these circumstances a hearing is necessary to determine whether the Defendant was properly served (see Sidney, 241 AD3d 1492; Legal Servicing, LLC, 229 AD3d 533; CitiMortgage, Inc., 230 AD3d 1219; U.S. Bank N.A. v Henry, 232 AD3d 667, 670 [2d Dept 2024]; Castillo-Florez, 220 AD3d 1; Deutsche Bank Nat. Tr. Co., 148 AD3d at 777).

III. Conclusion

Based on the foregoing, it is hereby:

ORDERED that a traverse hearing to determine whether service on the Defendant was proper shall be held on August 11, 2026, at 2:15 PM, in the Supreme Court, Queens County, at the Courthouse located at 25-10 Court Square, Long Island City, New York 11101, Courtroom 304; and it is further,

ORDERED that all other relief sought by the Defendant is held in abeyance pending completion of the traverse hearing; and it is further

ORDERED that the Plaintiff shall serve a copy of this Order on the Defendant by regular mail to 150-42, 72nd Drive, Apt. 3H, Flushing, New York 11367, within 10 days of entry of this Order.

This constitutes the Decision and Order of the Court.

Dated: June 17, 2026

Long Island City, New York

SCOTT DUNN, J.S.C.

FOOTNOTES

1.   The two cases cited by the Plaintiff in its opposition—Canelas v Flores, 112 AD3d 871, 872 [2d Dept 2013] and Kandov v Gondal, 11 AD3d 516 [2d Dept 2004]—(Doc. No. 18 ¶ 15) are two of the cases specifically cited in Castillo-Florez as not to be followed for the proposition that the failure to update one's address with the DMV, by itself, warrants estopping a defendant from challenging service at a former address.

Scott Dunn, J.