PORTFOLIO RECOVERY ASSOCIATES LLC GE v. NOFAL (2020)

ORDERED that the order entered July 24, 2018 is reversed, without costs, the branch of defendant's motion seeking to, in effect, vacate the order entered June 22, 2018 is granted, and the matter is remitted to the City Court for a new determination, following a traverse hearing, of the branch of defendant's motion seeking to grant his prior motion to vacate the default judgment.

In this action for a breach of a credit card agreement, a default judgment was entered on March 29, 2011 upon defendant's failure to appear or answer the complaint. The affidavit of service indicates that defendant was served by service upon a person of suitable age and discretion (see CCA 403; CPLR 308 [2]). By order entered May 25, 2018, the court granted a motion by defendant to vacate the default judgment to the extent of setting the matter down for a traverse hearing, which hearing was scheduled for June 18, 2018. By order entered June 22, 2018, the City Court denied defendant's pending motion to vacate the default judgment, stating only that defendant had failed to appear for the traverse hearing and that plaintiff had been prepared to go forward. Defendant appeals from an order of the City Court entered July 24, 2018 denying defendant's subsequent motion to, in effect, vacate the June 22, 2018 order and, upon such vacatur, to grant his prior motion.

The branch of defendant's motion seeking to, in effect, vacate the June 22, 2018 order should have been granted since he demonstrated a reasonable excuse for his failure to appear for the traverse hearing—he incorrectly calendared the June 18th hearing as July 18th—and a meritorious defense to the action—lack of personal jurisdiction, which the City Court had already determined entitled him to a traverse hearing (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). We remit the matter to the City Court to conduct the traverse hearing that was originally ordered by that court and to determine the branch of defendant's pending motion seeking to vacate the default judgment, following the hearing.

Accordingly, the order entered July 24, 2018 is reversed, the branch of defendant's motion seeking to, in effect, vacate the order entered June 22, 2018 is granted, and the matter is remitted to the City Court for a new determination, following a traverse hearing, of the branch of defendant's motion seeking to grant his prior motion to vacate the default judgment.

RUDERMAN, J.P., ADAMS and TOLBERT, JJ., concur.