COMMUNITY CARE PHYSICIANS v. MILLER (2019)

Plaintiff commenced this debt collection action by the filing of a summons and complaint on February 7, 2018. Defendant was then served via substitute service at her actual place of abode on March 15, 2018 (see CPLR 308 [2]), with the affidavit of service filed on March 20, 2018. Defendant subsequently failed to appear and, on June 4, 2018, plaintiff obtained a default judgment against her in the amount of $1,716.92. Defendant has moved by Order to Show Cause to vacate the default judgment and the same is now returnable before the Court on submission.

Defendant first contends that she is entitled to an Order vacating the default judgment under CPLR 5015 (a) (4), which provides that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of ․lack of jurisdiction to render the judgment or order.”

Defendant has submitted an affidavit stating that she “was not served with a summons and complaint.” Defendant further states that the “[p]rocess server alleged [sic] to have served an individual named Joseph ‘Doe’ [and] no individual with that name resides at [her] single family home.”

The affidavit of service in fact states that the summons and complaint were served upon Joseph “Doe,” defendant's partner, who withheld his last name. To that end, defendant's contention that no individual named Joseph Doe resides at her home is insufficient to rebut the presumption of proper service created by the process server's sworn affidavit (see Swedish v. Beizer, 51 AD3d 1008, 1009 [2008]). Defendant is not entitled to an Order vacating the default judgment under CPLR 5015 (a) (4).

Defendant next contends that she is entitled to an Order vacating the default judgment under CPLR 5015 (a) (1). With that said, “[a] party seeking to vacate a judgment of default pursuant to CPLR 5015 (a) (1) must show a reasonable excuse for the default and the existence of a meritorious defense” (Abel v. Estate of Collins, 73 AD3d 1423, 1425 [2010]; see Wade v. Village of Whitehall, 46 AD3d 1302, 1303 [2007]; Nilt, Inc. v. New York State Dept. of Motor Vehicles, 35 AD3d 937, 938 [2006]).

Here, defendant contends that she has a reasonable excuse for the default, namely that she “never received the court papers,” and she has a meritorious defense because she “dispute[s] the amount of debt alleged to be owed.”

As already observed, defendant's contention that she did not receive any court papers is unavailing. Further, she has offered no details whatsoever in support of her contention that the amount of the judgment is incorrect. Defendant is not entitled to an Order vacating the default judgment under CPLR 5015 (a) (1).

Therefore having reviewed the Order to Show Cause dated June 19, 2019 with supporting papers including the Affidavit of Emily Miller sworn to June 12, 2019, the Reply Affirmation of John T. Judd, Esq. sworn to July 8, 2019 together with Exhibits “A” through “C” and the Supplemental Affidavit of Emily Miller sworn to June 28, 2019 it is

ORDERED that defendant's motion is denied in its entirety, and it is further

ORDERED that the temporary stay of enforcement of the judgment granted with the Order to Show Cause dated June 19, 2019 is hereby vacated, and it is further

ORDERED that any relief not specifically granted has nonetheless been considered and is denied.

The original of this Decision and Order has been filed by the Court together with the submissions listed above. Counsel for plaintiff is directed to obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.

Robert J. Muller, J.