MATHEW v. MOSIER (2007)

Plaintiff in this action moves, pursuant to N.Y. C.P.L.R. § 5015(a)(1), to vacate the Court's July 13, 2006 Order denying his motion for summary judgment against defendant.   Plaintiff's motion alleged that defendant had failed to make payments on an installment promissory note that she entered into on October 16, 2002.

It is possible that plaintiff's legal claims against defendant are meritorious.   Whether they are or not, though, is not the key question before the Court.   Rather, the central issue posed by plaintiff's motion is whether plaintiff has satisfied the prerequisites for vacatur under N.Y. C.P.L.R. § 5015(a)(1), or any other subdivision of N.Y. C.P.L.R. § 5015(a).   As discussed below, he has not done so.

PROCEDURAL BACKGROUND

On May 8, 2006, plaintiff Dr. Theckedath Mathew commenced this action by filing a Summons and Motion for Summary Judgment in Lieu of Complaint against defendant Bridgett Mosier pursuant to N.Y. C.P.L.R. § 3213.   Plaintiff scheduled the motion to be heard by the Court on June 15, 2006.

Plaintiff's motion alleged that when defendant worked for him several years ago, defendant borrowed $8,090.00 from him, and agreed to the deduction of $134.83 per month from her salary to repay the loan.   On October 22, 2002, however, defendant's employment with plaintiff ended.   Consequently, on October 16, 2002, defendant signed a notarized affidavit agreeing to pay plaintiff $134.83 per month “for the next 48 installment[s] until the loan is completely paid off.”   Plaintiff's January 17, 2007 Motion, Exhibit A. According to plaintiff, defendant last paid a monthly payment in December 2003, and continues to owe plaintiff $6,410.51.

On June 9, 2006, plaintiff filed an Amended Motion for Summary Judgment that changed the defendant's name to “Roxann Mosier.”   Because of the amended documents and because defendant had not yet been served, plaintiff also rescheduled his motion for July 13, 2006. See Plaintiff's Attorney's June 13, 2006 letter to the Court.   On July 13, 2006, the motion's return date, neither party appeared.   Furthermore, no affidavit of service of the summons and motion had been filed with the Court.   Accordingly, the Court summarily denied plaintiff's motion without prejudice on the Record.

Several months later, on January 15, 2007, plaintiff served a second Amended Motion for Summary Judgment in Lieu of Complaint in this action, returnable on January 29, 2007.   He did not, however, file the second Amended Motion.¹  Instead, on January 17, 2007, defendant served the instant Motion to Vacate the Court's July 13, 2006 Order, returnable on February 12, 2007.²  In his January 17, 2007 cover letter to defendant, plaintiff's attorney advised defendant that the unfiled motion he had scheduled for January 29, 2007 was “on hold” until the instant motion was decided.

LEGAL DISCUSSION

 Generally, for a court to grant a motion to vacate a prior order, a moving party must demonstrate the existence of one of the criteria for vacating a prior order set forth in N.Y. C.P.L.R. § 5015(a), or another compelling reason that would justify the requested relief in the interests of justice.   See Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 69, 760 N.Y.S.2d 727, 790 N.E.2d 1156 (2003);  Pignataro v. Pignataro, 9 A.D.3d 890, 891, 779 N.Y.S.2d 374 (4th Dep't), leave to appeal dismissed, 3 N.Y.3d 738, 786 N.Y.S.2d 816, 820 N.E.2d 295 (2004).   No such reason exists in this case.

Plaintiff asserts that he neither filed the affidavit of service nor appeared on the July 13, 2006 return date because defendant had not been served with process as of that date.   According to plaintiff's attorney, he was unable to serve defendant because he believed that she “had moved to Florida.”   January 17, 2007 Affidavit of Chad M. Hummel, Esq., ¶ 5. According to plaintiff's attorney, defendant was eventually served with the Amended Summons and Motion in a county contiguous to Monroe County on January 15, 2007.³

Plaintiff contends that because defendant has now been served with the Amended Summons and Motion for Summary Judgment in Lieu of Complaint, the Court's July 13, 2006 Order denying his motion should be vacated.   This argument misapprehends the primary principle underlying a court's discretionary authority to vacate its prior orders.   See Woodson v. Mendon Leasing Corp., 100 N.Y.2d at 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156.

 The fundamental goal of a court's vacatur authority is to enable a court to vacate and correct an order that was issued on the basis of erroneous or mistaken factual information.   Stated differently, vacatur is appropriate where, had accurate information been before the court at the time of its order, the order might not have been issued.   Conversely, a court's vacatur authority is not intended to give a party a second bite of the apple based on new factual developments that occurred after the original order was issued.

This objective is reflected in each of the five statutory criteria for vacating an order under N.Y. C.P.L.R. § 5015(a).   For example, pursuant to N.Y. C.P.L.R. § 5015(a)(1), a default judgment against a defendant may be vacated if the defendant has a legitimate, “excusable” reason for failing to respond to the complaint in a timely manner.⁴  See Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 (1986);  Genesee Management Inc. v. Barrette, 4 A.D.3d 874, 875, 771 N.Y.S.2d 778 (4th Dep't 2004).   Likewise, under N.Y. C.P.L.R. § 5015(a)(2), vacatur is appropriate when a party submits newly discovered evidence that could not have been previously discovered in a timely manner and that would probably have affected the court's order.   See, e.g., Shouse v. Lyons, 4 A.D.3d 821, 822, 772 N.Y.S.2d 177 (4th Dep't 2004).

 In a similar vein, N.Y. C.P.L.R. § 5015(a)(3) provides for vacatur where the order was based on the adverse party's fraud, misrepresentation, or other misconduct.   See, e.g., Shouse v. Lyons, 4 A.D.3d at 822, 772 N.Y.S.2d 177.  NY C.P.L.R § 5015(a)(4) permits vacatur where the court lacked jurisdiction to issue its order.   See, e.g., Hartloff v. Hartloff, 296 A.D.2d 849, 745 N.Y.S.2d 363 (4th Dep't 2002).   Finally, under N.Y. C.P.L.R. § 5015(a)(5), vacatur is warranted where a prior order upon which the court's order was based is itself reversed, modified or vacated.   See, e.g., Dupkanicova v. James, 17 A.D.3d 627, 793 N.Y.S.2d 512 (2d Dep't 2005).   Plaintiff's explanation for seeking vacatur neither falls within any of these statutory categories nor encompasses any other basis to conclude that the Court's July 13, 2006 Order was improvidently granted, thereby justifying vacatur in the interests of justice.   Indeed, the opposite is true.   As of July 13, 2006, the motion's return date, defendant had not been served with process.   For that reason, as of July 13, 2006, the Court did not have jurisdiction over defendant, and plaintiff was not entitled to a grant of summary judgment against her as of that date.   See N.Y. Uniform City Courts Act, § 400(2).

 Even if defendant had been served with process, the failure to file the affidavit of service as of July 13, 2006 was also fatal to plaintiff's motion.   Unless proof of service is filed with a default application, the court cannot determine whether a defendant was properly notified of the pending action so as to confer the court's jurisdiction over defendant.   See N.Y. Uniform City Court's Act, § 400(2).   Therefore, to obtain a default judgment against a non-appearing defendant, a plaintiff must file, as part of his or her moving papers, proof of service of process.   Failure to do so precludes entry of a default judgment.   See N.Y. C.P.L.R. § 3215(f);  Levi v. Oberlander, 144 A.D.2d 546, 547, 535 N.Y.S.2d 958 (2d Dep't 1988).

Plaintiff in this action filed a motion for summary judgment in lieu of complaint, not a motion for default judgment.   Unlike N.Y. C.P.L.R. § 3215(f), N.Y. C.P.L.R. § 3213, which provides for motions for summary judgment in lieu of complaint, does not, by its terms, mandate the filing of proof of service of process.   Nevertheless, the rationale for such a filing requirement in the context of a default judgment motion applies with equal force in the context of a motion for summary judgment in lieu of complaint against a non-appearing defendant.   Absent proof that a non-appearing defendant has been notified of a plaintiff's legal action against him or her, a court should not grant monetary relief to a plaintiff, regardless of whether the plaintiff has applied for a default judgment or moved for summary judgment in lieu of a complaint.

 Accordingly, as in the default judgment context, where defendant has neither appeared nor answered a summary judgment motion in lieu of complaint under N.Y. C.P.L.R. § 3213, a plaintiff's failure to file proof of service of process bars a plaintiff from obtaining the requested relief.   Plaintiff's failure to file proof of service of process in conjunction with his Motion for Summary Judgment in Lieu of Complaint, therefore, warranted the Court's denial of his motion on July 13, 2006.

In sum, the Court's July 13, 2006 Order denying plaintiff's motion was neither improperly nor mistakenly decided.   To the contrary, the information submitted by plaintiff in his January 17, 2007 vacatur motion plainly reveals that the Court's July 13, 2006 Order denying plaintiff's motion was correct.   Accordingly, plaintiff is not entitled to vacatur of that Order.

As noted above, the Court's July 13, 2006 Order denied plaintiff's May 8, 2006 summary judgment motion without prejudice.   Consequently, plaintiff is not precluded from filing and serving a subsequent summary judgment motion once the court's jurisdiction over defendant has been acquired by way of proper service of process. See N.Y. Uniform City Court Act § 400(2).   Whether proper service of process has actually been accomplished in this case, however, is an open question.

 N.Y. C.P.L.R. § 306-(b) and N.Y. Uniform City Court Act § 411 require that service of process, including a summons and summary judgment motion in lieu of complaint,⁵ must be served upon a defendant within one hundred twenty days after the action is commenced.⁶  Those identical provisions also provide that a court has the discretion to extend the time to serve process on a defendant for “good cause shown” or “in the interests of justice.”

Plaintiff in this case made no attempt to seek from the Court additional time to serve defendant with the summons and summary judgment motion in lieu of complaint beyond the mandatory one hundred twenty-day time period.   Instead, according to his motion, plaintiff waited until January 15, 2007, more than eight months after the action was commenced, to serve defendant with the summons and motion.   How process was served is unclear because to date, no affidavit of service has been filed in this action.⁷

 Whether plaintiff would prevail on a motion to grant an extension of the one hundred twenty-day service period depends upon a consideration of several factors, including the plaintiff's diligence in attempting to serve defendant, the potential expiration of the applicable statute of limitations, the meritorious nature of plaintiff's claims, the length of delay in service of process, the promptness of plaintiff's request for the extension of time, and prejudice to defendant.   See Leader v. Maroney, 97 N.Y.2d 95, 105-06, 736 N.Y.S.2d 291, 761 N.E.2d 1018 (2001).   While the “interests of justice” standard provides a more flexible ground for the exercise of the court's discretion that the “good cause” standard, id., the courts must scrutinize all the relevant factors and deny the request if it is not justified.   See Slate v. Schiavone, 4 N.Y.3d 816, 796 N.Y.S.2d 573, 829 N.E.2d 665 (2005) (lower court abused its discretion in granting extension of time to serve defendant where plaintiff demonstrated extreme lack of diligence and long delay ensued before defendant received notice of action).   See also Posada v. Pelaez, 37 A.D.3d 168, 830 N.Y.S.2d 55 (1st Dep't 2007).

Plaintiff's satisfaction of the prerequisites for obtaining an extension of time to serve defendant is not before the Court inasmuch as plaintiff has not moved for an extension under N.Y. C.P.L.R. § 306-b or N.Y. Uniform City Courts Act § 411.   If he does so, the reviewing Court can decide whether the extension should be granted or, in the alternative, the action should be dismissed for failure to serve process within the statutory time frames of N.Y. C.P.L.R. § 306-b and N.Y. Uniform City Courts Act § 402.   See Posada v. Pelaez, 37 A.D.3d 168, 830 N.Y.S.2d 55.

CONCLUSION

For the foregoing reasons, plaintiff's Motion to Vacate the Court's July 13, 2006 Order denying his summary judgment motion is denied.   Plaintiff is directed to attach a copy of this Order to any further applications for judicial intervention that are made to the court in this action.

SO ORDERED.

FOOTNOTES

1.   The Court's records indicate that this motion was never filed or docketed with the Court.

2.   Because plaintiff's attorney mailed the instant motion directly to the Court's chambers, it was not immediately filed.   The instant motion was filed and docketed on January 31, 2007.   The parties were notified that the return date would be canceled because the Court is officially closed on the date plaintiff chose for the return date and because the Court determined there was no need for oral argument.

3.   No affidavit of service of the Summons and Notice of Summary Judgment Motion in Lieu of Complaint has been filed, nor was one attached to the instant motion.

4.   Cf. N.Y. C.P.L.R. § 317, which permits vacatur of a default judgment entered against a defendant who shows that he or she was not personally served with the summons, so long as the defendant moves for vacatur within one year after learning of the entry of the judgment and demonstrates a meritorious defense.

5.   That N.Y. C.P.L.R. 306-b lists several forms of process used to initiate an action or proceeding but does not expressly identify a summons and summary judgment motion in lieu of complaint does not negate the applicability of that provision's time limits for service of such documents.   See Huang v. Revilla, 170 Misc.2d 617, 618, 651 N.Y.S.2d 286 (Queens County 1996).  N.Y. C.P.L.R. § 306-b governs the time limits for service of the documents that initiate an action.   A summons and summary judgment motion in lieu of a complaint initiate a legal action.   Accordingly, there is no reason to apply different time limits to a plaintiff's obligation to serve such documents than those that are applied to other forms of legal process.

6.   The filing system for commencement of legal actions was adopted in city courts throughout New York State on September 8, 2005.   See L. 2005, ch. 452, § 7.

7.   A plaintiff is required to file proof of service of process under N.Y. Uniform City Court Act § 409.   However, that provision prescribes no time limits for doing so.   While N.Y. C.P.L.R. §§ 308(2) and (4) requires the filing of proof of service of process pursuant to those subsections within specified time periods, N.Y. C.P.L.R. §§ 308(1) and (3) are silent as to when proof of service pursuant to those subsections must be filed.

ELLEN M. YACKNIN, J.