In this credit card collection matter, the pro se defendant moves via an Order to Show Cause to vacate the default judgment, restore the case to calendar, stay enforcement of collection and return all funds withdrawn from his account.

The pro se defendant alleges that on or about November 5, 2006, he learned that a judgment had been entered against him when he received a letter regarding a judgment in the amount of $5,448.35. The defendant further states that he had no relationship with the plaintiff or the assignor. He never entered into an agreement with them, and thus he is not indebted to the plaintiff. Moreover, the defendant states that he failed to appear at trial because he was never notified about the lawsuit despite the affidavit of service filed with the Court.

In opposition, the plaintiff argues that the defendant already satisfied the judgment; therefore the entire issue is moot. In support of its position, plaintiff attaches a copy of an official check and customer receipt; the funds appear to have been drawn from the defendant's account.

On a motion to vacate a default judgment, the movant is required to establish a reasonable excuse for the default as well as a meritorious claim or defense. CPLR §5015 (a) (1); Beizer v. Oparaji, 10 Misc 3d 140 (A) (App. Term 2nd & 11th Jud. Dists. 2006). However, where the movant asserts lack of personal jurisdiction as the grounds for vacatur, it is not necessary to demonstrate either of these elements. European American Bank & Trust Co. v. Serota, 242 AD2d 363 (2nd Dept. 1997); Steele v. Hempstead Pub Taxi, 305 AD2d 401 (2nd Dept. 2003). If the summons and complaint were not properly served, the Court lacked jurisdiction, and the default judgment would be a nullity, despite the claim that the judgment ceased to exist upon payment. [*2]Cadin Contracting Inc., v. Kenneth L. Rich Agency, 158 AD2d 442 (2nd Dept. 1990); Citibank (South Dakota), N.A. v. Farmer, 166 Misc 2d 145 (City Court, Westchester Co. 1995). "The court which rendered a judgment or order may relieve a party from it upon such terms as may be just upon the ground of: lack of jurisdiction to render the judgment or order. " CPLR §5015(a) (4).

In the instant matter, the defendant's affidavit sufficiently raises an issue of fact with respect to service of process so as to require a traverse hearing. Frankel v. Schilling, 149 AD2d 657 (2nd Dept. 1989); Mortgage Access Corp. v. Webb, 11 AD3d 592 (2nd Dept. 2004); Tilden Financial Corp. v. Commisso, 118 AD2d 848 (2nd Dept. 1986); Green Point Savings Bank v. Taylor, 92 AD2d 910 (2nd Dept. 1983).

Accordingly, defendant's Order to Show Cause is granted solely to the extent of setting this matter down for a traverse hearing and final determination on this motion on April 23, 2007, at 2:15 p.m., in Special Term Part 39, Room 1102.

This constitutes the decision and order of this Court.

Dated: February 28, 2007__________________________________

Genine D. Edwards, J.C.C.