Plaintiff moves for summary judgment pursuant to C.P.L.R. § 5406 for an Order enforcing a Massachusetts default judgment in the amount of $3, 422.38. Defendant submitted written opposition. For the reasons stated below, plaintiff's motion is denied.

Defendant initially argues that the plaintiff has failed to prove that the plaintiff established personal jurisdiction in the underlying matter for which full faith and credit should be warranted.

C.P.L.R .§ 5401 states in pertinent part . . . foreign judgment means any judgment, decree or order of a court of the United States . . . which is entitled to full faith and credit in this state, except one obtained by default in appearance . . . (emphasis added). However, under New York law, where a party has actively participated in the litigation prior to the entering of a non-appearance default judgment, said judgment may be entitled to full, faith and credit under C.P.L.R. § 5401. Further, those default judgments entered to "on consent" may also be entitled to full faith and credit registration under C.P.L.R. § 5401.

In the instant matter, although the judgment was entered on default based on the non-appearance of the defendant, this Court nonetheless finds that the record reflects that the [*2][*3]defendant had actively participated in the litigation by interposing an answer and conceding to jurisdiction by failing to actively litigate this issue. Shine, Julianelle, Karp, Bozello & Karazan v. Rubens, et. al (192 AD2d 345 (1st Dept. 1993). As such, the instant matter is properly before this Court.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Winegrad v. New York University Medical Center, 64 NY2d 851, 853, 476 NE2d 642, 487 N.Y.S. 316 (1985). Summary judgment is a drastic remedy, and it should not be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141 (1978). The court's function on this motion for summary judgment is issue finding, not issue determination. Krupp v. Etna Life & Cas. Co., 103 AD2d 252, 479 NYS2d 992 (2nd Dept. 1984). Summary judgment will only be granted if there are no material, triable issues of fact. Stillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 498 (1957).

In support of the motion for summary judgment, plaintiff submitted inter alia, a copy of the pleadings including a copy of the judgment, an affidavit by plaintiff's attorney and a copy of the lease agreement. Plaintiff argues that they are entitled to enforcement of the agreement based on the United States Constitution and C.P.L.R. statutory requirements of full faith and credit to sister state judgments.

Defendant submitted in opposition, inter alia, a memorandum of law and a stipulated Final Judgment and order. The stipulated Final Judgment and Order involved plaintiff as a defendant in an action brought by the Federal Trade Commission (FTC). Defendant argues that pursuant to the June 3, 2003 Order of the United States District Court, District of Massachusetts (District Court Order), the plaintiff is prohibited from collecting on this judgment. Defendant cited the relevant portions of the District Court Order.

Section IV(A) states in pertinent part: "defendant [Leasecomm] [is] permanently restrained and enjoined from instituting collection suits against customers in a forum other than the county where the customer resides at the commencement of the action, or in the county where the customer signed the contract sued upon;" Section V(A) states in pertinent part: "defendants shall cease collecting on any outstanding court judgments where the financing involved virtual terminal . . . Defendant's shall be deemed in compliance with the preceding sentence if they promptly cease collections on any outstanding SBI judgments and thereafter, for a period of one year after entry of this Order, cease collections on any outstanding judgment where the customer demonstrates that the predominant purpose of the financing was for a business venture."

At the outset it should be noted that plaintiff cured any defect in the moving papers by attaching a copy of the pleadings of the underlying action to the reply affirmation. Conversely, it is noted that the defendant did not annex an affidavit from an individual having personal knowledge of the action in support of the affirmation in opposition. GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965 (1985); JMD Holding Corp. v. Congress Financial, 4 NY3d 373( 2005); Vermette v. Kenworth Truck Co., 68 NY2d 714(1986).Nonetheless, plaintiff's motion for summary judgment [*4][*5]is denied. Plaintiff has failed to make a prima facie showing of entitlement to summary judgment. Plaintiff's ability to recover any judgments of this kind is prohibited in light of the District Court Order which was entered into on consent.

The District Court Order, section 1. 20 defines a virtual terminal as a POS authorization system which includes any intangible products, rights to access or use services, software, and licenses which enable Customers to process credit card transactions or account debits on-line or through the Internet or over a computer. (Emphasis added). A Point of Sale (POS) authorization system include[s], but [is] not limited to, credit processing equipment and virtual terminals. Based on the foregoing definitions this Court finds that the machine in question is not a virtual terminal as defined in the District Court Order. The invoice and machine description annexed to the plaintiff's reply papers illustrate the machine in question is equipment which is defined in section 1.7 of the District Court Order as "any tangible equipment including but, not limited to, point of sale hardware, ATM machines . . ." As such, Section V(A) of the Order, requiring the plaintiff's to cease collection on SBI, virtual terminal or business venture judgments is inapplicable. However, the plaintiff's ability to file this claim is compromised under the notification clause of the District Court Order Section IV(A). Specifically, there is no indication that the defendant was properly notified of the right to transfer pending litigation to defendant's local forum as the plaintiff have failed to include any confirmation of receipt of the notification letter. The plaintiff has not sufficiently established the right to bring the instant matter to recover a judgement in a forum outside the county where the defendant currently resides. Consequently, it is not necessary to address the adequacy of the opposition papers.

Accordingly, plaintiff's motion to enforce the Massachusetts default judgment under the "full faith and credit" clause of CPLR § 5401 is denied.

The foregoing constitutes the decision and order of the Court.

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Bronx, New YorkHon. Nelida Malave-Gonzalez, J.C.C.