Elite Recovery Servs., Inc. v Helrich (2011 NY Slip Op 50799(U))

Elite Recovery Servs., Inc. v Helrich

2011 NY Slip Op 50799(U) [31 Misc 3d 1222(A)]

Decided on April 25, 2011

Civil Court Of The City Of New York, Richmond County

Straniere, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this

ORDER TO SHOW CAUSE TO VACATE DEFAULT

Notice of Motion and Affidavits Annexed............................................

Order to Show Cause and Affidavits Annexed.....................................1 & 2

Affirmation in Opposition......................................................................3

Replying Affidavit of defendant.............................................................

Exhibits.....................................................................................................

Other: ......................................................................................................

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

Plaintiff, Elite Recovery Services, Inc., as assignee of Capital One, commenced this action against the defendant, R. Howard Helrich, alleging that the defendant owed money pursuant to a credit card agreement. Defendant defaulted in appearing and answering. The plaintiff entered a judgment by default on October 20, 2008 in the amount of $1,429.65 which included interest from February 12, 2008 at 9%, costs and disbursements. Thereafter the plaintiff [*2]took steps to enforce the judgment by having the marshal serve an income execution on defendant's employer, First Data Corp. in order to garnish defendant's wages. Pursuant to that garnishment, which commenced on or about June 11, 2009, the plaintiff has in fact collected $1,554.09. Plaintiff alleges that there remains due and owing only $243.40 before the judgment is satisfied. Plaintiff has been represented by counsel at all times.

Currently before the court is defendant's order to show cause to vacate his default. The application is made without the assistance of counsel. Defendant has completed the preprinted form supplied by the Civil Court and alleges that: 1. He has never been served having first learned of the litigation by receipt of the Income Execution; and 2. He has as a defense that it is not his debt. Defendant has not submitted any documentation to support either of these allegations. Plaintiff has submitted opposition papers.

This action was commenced by the filing of a summons and complaint in the Civil Court on July 24, 2008. Process was served upon the defendant at 105 DeKalb Street, Staten Island, New York pursuant to CPLR §308 by delivery to a person of suitable age and discretion on August 5, 2010. As required by the statute another copy of the summons and complaint was mailed to the defendant at the DeKalb Street address. An additional notice as required by CPLR §3215(g) was mailed to the defendant on September 3, 2008 prior to entry of the default on judgment. Defendant in his order to show cause indicates that 105 DeKalb Avenue is still is address.

The CPLR provides two different sections by which a defendant may seek to vacate a default judgment, CPLR §317 and CPLR §5015(a). The preprinted form prepared by the court system for use by defendants does not designate pursuant to which statute the application is being made. Presumably, the court must then treat it as having been made pursuant to both statutes so as to give a defendant the opportunity to comply with the policy of the Civil Court to give each litigant his or her day in court and to have a case decided on the merits. Arguably, an application made by an attorney being versed in the law would not be afforded such a liberal interpretation there being an expectation that the attorney would designate one or both statutory sections in the motion.

Defendant may utilize this section because personal service of process was made by substituted service (delivery to a person of suitable age and discretion), and not personal delivery. [*3]As such he is entitled to bring this motion within one year of defendant learning of this judgment. In his affidavit in support of his order to show cause, defendant does not state how or when he obtained knowledge of the judgment. At the court appearance defendant acknowledged that he knew his pay was being garnished but indicated he did nothing to determine why it was occurring and what was the basis of the wage execution. Notice of the income execution was sent to the employer in June 2009. Normally, payments would begin to be forwarded to the marshal shortly thereafter. Plaintiff acknowledges receipt of fourteen payments totaling $1,554.09 but does not indicate when they were first received nor how often. If the garnishment was effective beginning in June 2009, then the defendant's motion would be untimely. Defendant's time to move to vacate the judgment would be triggered from the date of the first wage execution. At that time he had either actual or constructive notice of the judgment and the litigation. Whether the defendant realized there was an income execution is irrelevant. He is charged with knowledge of the judgment once the first monies were withheld from his paycheck, unless of course his pay check is so large that a deduction pursuant to the garnishment would be unnoticed. Defendant did not produce any evidence to support that conclusion or establish that he never received notice that his paycheck was being reduced.

If the court were to determine that the defendant has brought this application within a year of receiving notice of the judgment, then the defendant would have to establish that he did not personally receive notice of the summons in time to defend the action and that he has an affirmative defense.

Service of process under CPLR §308 requires only that a method be utilized which is reasonably calculated to give notice to the defendant of the litigation [Mullane v. Central Hanover Bank & Trust Co., 399 US 306 (1950)]. Clearly personal delivery is the best form of notice. However, compliance with the methods of alternate service under the statute also confers personal jurisdiction on the court. Plaintiff's process server delivered the summons and complaint to a person of "suitable age and discretion" described as "Jamel Rowe-cotenant" at the premises 105 DeKalb Street. A copy of the summons and complaint was mailed to that address as well. DeKalb Street is the address listed by the defendant as his current address in this order to show cause. An additional notice was mailed to that address prior to entry of the default judgment required by CPLR §3215. Plaintiff complied with the statute so as to give notice to the defendant. The law only requires use of a method reasonably calculated to give notice to the defendant and not actual receipt. Defendant has failed to establish that the method utilized was not reasonably calculated to give him notice. Defendant did not in his affidavit in support of this motion provide any information to challenge the assertions of the affidavit of service and has not successfully rebutted the presumption that service was properly made.

Defendant also has to establish that he has a meritorious defense to the action. He merely asserts that this is not his debt. He has not submitted anything approaching an "affidavit of meritorious defense." If that is the case why did he wait so long to react to the income execution? It is not credible that a person would knowingly permit money to be taken from his pay check every pay period to satisfy an obligation which was not his. He has not offered any reasonable [*4]excuse for this delay or even an unreasonable one such as he was a victim of an alien abduction , it was his turn to spend a year looking for the Loch Ness monster, was working as a short-order cook on a trap steamer, or he was stuck on the Boston MTA with Charlie.

The second statute providing relief from a default judgment is CPLR §5015. This statute states:

A review of the court file does not establish that service of the written notice of the entry of the judgment against the defendant was ever served on the defendant by the plaintiff. As such under CPLR §5015(a) this motion is timely. Defendant still has to establish an excuse for the default and a meritorious defense. Defendant has not set forth any excuse as to why he ignored an income execution against his wages for twenty-months. The execution went into effect in June 2009 and defendant did not make this motion until February 2011. It is not credible that the defendant did not have either actual or constructive knowledge of the litigation as he had been having his wages garnished for over a year. As noted above, the policy of this court is to try to have all cases decided on the merits. However, the justice system assumes that people will act to challenge a judgment wrongfully entered against them within a reasonable amount of time after obtaining notice of it and that they will act in an expeditious manner to address such a situation. The actions of the defendant do not even approach "diligence" let alone "due diligence." As noted above the defendant has failed to establish an "excusable default!" Neither has the defendant alleged any real defense to the claims set forth in the summons and complaint.