[*1]
Ally Fin. Inc. v Saint-Jean
2012 NY Slip Op 51789(U) [36 Misc 3d 1241(A)]
Decided on September 13, 2012
Supreme Court, Kings County
Rivera, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 13, 2012
Supreme Court, Kings County


Ally Financial Inc., Plaintiff,

against

Jean R. Saint-Jean and GOLDTAG CORPORATION, Defendants.




24278/11



Attorney for Plaintiff

George C. Fontana, Jr.

Simmons Jannace, LLP

115 Eileen Way, Suite 103

Syosset, New York 11791

Francois A. Rivera, J.



By notice of motion filed on April 17, 2012, under motion sequence two, plaintiff Ally Financial Inc. (Ally Financial) has moved for an order granting default judgment against defendants Jean R. Saint-Jean (Saint-Jean) and Goldtag Corporation (Goldtag) pursuant to CPLR 3215.

The motion is unopposed.

BACKGROUND


On October 26, 2011, plaintiff commenced this action by filing a summons and verified complaint with the Kings County Clerk's Office. Plaintiff's complaint alleges that Saint-Jean breached a motor vehicle financing contract for a 2010 Lincoln Town Car, with a VIN 2LNBL8CV0AX613918 (the "vehicle"), by failing to make monthly payments due on April 28, 2011, and each month thereafter. Plaintiff alleges three causes of action. First, that defendants are in unlawful possession of the vehicle, and plaintiff is entitled to either replevin, or to the value of [*2]the vehicle. Second, that Saint-Jean has defaulted on his contract, and that plaintiff is entitled to the outstanding contract balance. Third, that plaintiff is entitled to attorneys' fees resulting from the filing and prosecution of the instant action.

Simultaneously with filing the summons and complaint the plaintiff moved by order to show cause for an order of seizure pursuant to CPLR 7102. The instant application failed to apprise the court of the outcome of the order to show cause. However, the Court is permitted to take judicial notice of the record (see Allen v Strough, 301 AD2d 11 [2nd Dept 2002]). After review of the record it is apparent that the order to show cause was calendered for oral argument on October 28, 2011 in Part 52. After oral argument the court denied the application by short form.

MOTION PAPERS


Plaintiff's motion papers consist of a notice of motion, the affirmation of Tiffany Love (Ms. Love) with an accompanying certificate of conformity, an attorney affirmation and nine annexed exhibits. Exhibit 1 is the summons and verified complaint. The complaint includes three exhibits labeled A-C. Exhibit A is allegedly a copy of a retail installment contract between St. Jean and Central Florida Sales and Leasing Inc.(Central). Exhibit B is labeled as a New York State Department of Motor Vehicle Abstract of Title report which reflects Ally Financial as a lien holder against the vehicle. Exhibit C is a document which is described as a power of attorney.

Exhibit 2 is the order to show cause seeking an order of seizure. Exhibit 3 is an affidavit of service of a licensed process server attesting that on October 26, 2011, he personally served Saint-Jean with the summons, complaint and order to show cause. Exhibit 4 consists of three affidavits of service of a licensed process server. Two affidavits of service attest to service on Goldtag via its managing agent and via the Secretary of State. The third affidavit of service attests to service upon the Nassau County Sheriff's Department via its managing agent. Exhibit 5 consist of three affidavits of service by an employee of plaintiff's attorney attesting that she served the summons and complaint pursuant to CPLR 3215(g)(3)(I). Exhibit 6 consists of invoices detailing attorneys' fees and disbursements related to this case.

LAW AND APPLICATION


In order for a plaintiff to succeed in a motion for default judgment, they must satisfy the procedural steps set forth in CPLR 3215(a). The burden is on the plaintiff to prove they properly served the defendants with the summons and complaint (see e.g. Trofimov v Furmanov, 38 AD3d 530 [2nd Dept 2007]). Additionally, the movant is required to submit proof of the facts sufficient to establish a viable claim, and proof of the defaulting party's default in answering or appearing (see CPLR 3215[f]; Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept 2011]). CPLR 3215(f) states specifically, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim are to be set forth in an affidavit made by the party (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]).

CPLR 308 and 311 provide distinct service requirements for individual and corporate defendants. An individual may be served by delivering the summons within the state to the person to be served; by delivery to a person of suitable age and discretion at the actual place of business, dwelling or place of abode with a follow up mailing within 20 days; to an authorized agent for service; or when personal service or service upon an individual of suitable age and discretion cannot be made, by affixing the summons to the door of either the place of business, [*3]dwelling place or usual place of abode with a follow up mailing done within 20 days (see CPLR 308). A domestic corporation may be served by delivery of the summons to an officer, director, managing or general agent, or cashier or assistant cashier or an other agent authorized by appointment or by law to receive service. A corporation may also be served by delivery of the summons to the Secretary of State (see CPLR 311).

To succeed on a motion for default judgment, plaintiff must first prove that they served both parties. The general rule to prove service is to specify the papers served, the person who was served and the date, time and address (see CPLR 306). The affidavits of the licensed process servers constitutes prima facie proof of service of the summons and complaint on both the individual and corporate defendants (see City of New York v Miller, 72 AD3d 726 [2nd Dept 2010]).

Plaintiff's next hurdle is a showing that the defendant failed to appear (see CPLR 3215). Pursuant to CPLR 320, a defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending time to answer. An appearance shall be made within twenty days after service of the summons is complete (CPLR 320[a]). Plaintiff asserts that defendants have not answered, made a motion to extend time to answer, nor filed a notice of appearance. Therefore, they are in default.

The plaintiff must still show proof of facts sufficient to establish a viable claim against the defendants. This the plaintiff has failed to do primarily for three reasons. First, the affirmation of Ms. Love, "Replevin Specialist for Ally Servicing LLC, a wholly owned subsidiary of Ally Financial Inc." is insufficient to lay a foundation for the admissibility of the records that allegedly establish plaintiff's claims against the defendants. Ms. Love asserts that pursuant to a limited power of attorney she is authorized to oversee plaintiff's claims and collection matters. She also asserts that she is able to certify the authenticity of Ally Financial's records.

The limited power of attorney appears to show an agreement by Ally Financial's President, W.F. Muir, to appoint certain powers to Ally Servicing. However, the text of the power of attorney states that the powers granted to Ally Servicing from Ally Financial, referred to in the power of attorney as "Company", are "with respect to (i) all retail installment sale contracts serviced and administered by said attorney in fact for the benefit of Company pursuant to that certain Sub-Servicing Agreement by and between said attorney-in-fact and Company dated effective as of September 1, 2005. . ." The "sub-servicing agreement" is not attached. Therefore, Ms. Love's authority to act on behalf of the plaintiff in regard to this particular matter is uncertain.

Second, Ms. Love alleges that the contract between St. Jean and Central was assigned to Ally Financial "for value and before maturity." In support of her contention she attaches the New York State Department of Motor Vehicle Title Abstract which reflects Ally Financial as a lienor. There are no assignments included in the motion. Therefore, the Court cannot determine if and when Ally Financial was assigned the contract from Goldtag and whether it is entitled to any form of relief.

Third, the contract that is allegedly the basis for Ally Financial's claims is out-of-focus and in four-point or less font. CPLR 2101 requires that the papers filed with the court be legible. Plaintiff's annexed contract is illegible and therefore plaintiff's allegations are not verifiable via [*4]the unreadable document. Therefore, plaintiff has not proven that Saint-Jean has entered into a contract nor defaulted thereon.

Lastly, plaintiff alleges that it is entitled to attorneys' fees that resulted from this action. It is a general rule that each side is responsible for bearing its own costs in litigation, and that, absent agreement, statute or court rule, the prevailing party may not collect attorney's fees from the losing one (see, e.g., Hooper Assoc. v AGS Computers, 74 NY2d 487 at 491 [1981]). Plaintiff claims that the contract and the law of Florida permit attorney's fees. However, the contract is illegible and plaintiff has not provided any basis for applying Florida Law to the instant action nor to any specific Florida statute nor any court rule. Therefore, plaintiff cannot be awarded attorney's fees.

CONCLUSION


Accordingly, plaintiff's motion for default judgment pursuant to CPLR 3215 is denied with leave to renew.

The foregoing constitutes the decision, order and judgment of the court.

Enter:____________________________J.S.C.