Appeals by defendant from an order of the Small Claims Part of the Justice Court, Town of North Castle, Westchester County (R. McGoey, J.), dated November 20, 2001, which denied her motion to vacate the default judgments, and from an order of the same couft, dated February 22, 2002, which granted her motion for reargument and, upon reargument, adhered to its original order dated November 20, 2001.

Appeal from order-dated November 20, 2001 unanimously dismissed since said order was superseded by the order dated February 22, 2002.

Order dated February 22, 2002 modified by providing that, upon reargument, defendant's motion to vacate the default judgments is granted and actions dismissed; as so modified, affirmed without costs.
[*3]In a small claims action, the defendant must be served by first class mail and certified mail at her residence, if she resides within the county and her residence is known to the plaintiff, or at her office or regular place of employment within the municipality if she does not reside in the county or if her residence within the county is not known to the plaintiff (UJCA 1803). In the instant actions, process was served upon defendant at the premises located at 23 Washington Avenue, North White Plains, New York which, it is uncontroverted, was not defendant's residence but where plaintiffs believed defendant maintained her office or her regular place of employment, since defendant's residence was not known to them. Inasmuch as the action was commenced in the Small Claims Part of the Justice Court of the Town of North Castle, defendant was not served within the municipality of the court regardless of whether she maintained an office or regular place of employment at the aforementioned North White Plains address. Therefore, the default judgments must be vacated and the actions dismissed inasmuch as the court was without personal jurisdiction over the defendant.

Doyle, P.J., and Rudolph, J., concur.

Lifson, J., dissents, in part, in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
[*4]PRESENT:DOYLE, P.J., LIFSON and RUDOLPH, JJ.
NO. 2002-559 W C
ELVIN DIAZ
Respondent, -
against -
CARYN TUCKMAN,
Appellant.
DON STRAUCH,
Respondent, -
against
[*5]CARYN TUCKMAN,
Appellant.

Lifson, J., dissents in part and votes to affirm the order dated February 22, 2002, which granted defendant's motion for reargument and, upon reargument, adhered to its original order dated November 20, 2001, which denied defendant's motion to vacate the default judgments, in the following memorandum:

The majority places great weight on the specific jurisdictional predicates of the Justice Court Act. The majority has determined (without proof to warrant the conclusion) that the appellant did not reside within the jurisdiction of the court in question. In so doing, they adopt the action of the Justice below who sua sponte determined, based on evidence not in the record, the correct residence of the appellant.

That entire issue begs the question. The appeal is from a determination of the Justice Court that granted reargument on a motion to vacate default judgments and, upon reargument, adhered to the original decision denying the application to vacate the judgments for want of jurisdiction.

Prior to the entry of judgment, the burden is upon the plaintiff to prove that jurisdiction over the defendant has been obtained (Saratoga Harness Racing Assn. v Moss, 26 AD2d 486, affd 20 NY2d 733; Jacobs v Zurich Ins. Co., 53 AD2d 524, 525). [*6]However, once a judgment is entered, it is entitled to a presumption of regularity and validity. On a motion to vacate based on the assertion of lack of jurisdiction, the burden is upon the defendant to substantiate the facts which might indicate the lack of the jurisdictional prerequisites (Nicolosi v Sleuth Sec. Sys., 247 AD2d 521; Sorgie v Dalton, 90 AD2d 790, appeal dismissed 58 NY2d 268, rearg den 59 NY2d 762). The proof here (a barren allegation that the applicant did not reside where service was effected) may not be sufficient (Facey v Heyward, 244 AD2d 452).

UJCA 1803 provides that the court acquires jurisdiction by the sending of notice of a claim:

"...by ordinary first class mail and certified mail with return receipt requested to the party complained against at his residence, if he resides within the county and his residence is known to the claimant, or at his office or place of regular employment within the municipality if he does not reside within the county or his residence within the county is not known to the claimant."

Based on the proof before it, the court is within its discretion to determine that the applicant has not established that she neither resides within the county nor has an office or regular place of employment within the municipality (since the true residence of the appellant may not be known). Moreover, given the uncontested fact that the applicant had invoked the court's jurisdiction to regain possession of the subject premises and has resisted all efforts to ascertain her residence, the court below was well within its discretion to deny the application to vacate the defaults. As the Appellate Division of this [*7]Judicial Department has observed:

"...denial of relief under CPLR 317 is appropriate where a defendant's failure to personally receive notice of the summons was a result of a deliberate attempt to avoid such notice (see, Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., supra, at p 143; Rifenburg v Liffiton Homes, 107 AD2d 1015; Casoione v Acme Eguip. Corp., 23 AD2d 49)"
(Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d 621, 622).
That result is even more compelling where, as here, the subject action could have been brought as a counterclaim to the appellant's suit. I respectfully dissent.
Decision Date: August 19, 2003