[*1]
Pro Health Ambulatory Surgery v Daughtry
2016 NY Slip Op 50209(U) [50 Misc 3d 142(A)]
Decided on February 22, 2016
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2014-2690 N C

Pro Health Ambulatory Surgery, Respondent,

against

Daniel Daughtry, Appellant.


Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated October 15, 2014. The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, the default judgment is vacated, and the matter is remitted to the District Court of Nassau County, First District, for a traverse hearing; and it is further,

ORDERED that plaintiff is directed to pay defendant restitution in a sum equal to any money it has obtained through the garnishment of defendant's bank account.

In this action to recover $5,100 on a bill for medical services that were rendered in 1999, the affidavit of service states that defendant was served on October 9, 2004 by leaving copies of the summons and verified complaint with Jeremy Daughtry, a person of suitable age and discretion, at defendant's last known residence address, 522 McDonough Street, Basement, Brooklyn, New York, 11233, and by mailing the summons and complaint to defendant at the same address. On January 3, 2005, a default judgment was entered in favor of plaintiff.

On July 22, 2014, defendant moved to vacate the judgment. In his supporting affidavit, defendant denied prior awareness of the action, and stated that his health insurer should have paid his medical bill. Plaintiff opposed the motion. In what was, in effect, a reply affidavit, defendant, who then lived in Richmond, Virginia, stated that he had first learned of the action and the judgment in 2014, after his bank had been served with a restraining notice. As a "meritorious defense," defendant stated that the bill was for services which had been pre-approved by his insurer, and that he therefore believed that plaintiff had been paid. He said that, due to the antiquity of the action, he did not possess documents to refute plaintiff's claim, and annexed a statement from his insurer which showed that it did not store records over seven years old. By order dated October 15, 2014, the District Court denied defendant's motion.

In our opinion, defendant at least established his entitlement to vacatur of the judgment, since he demonstrated both a reasonable excuse for his default and a meritorious defense to the action (see CPLR 5015 [a] [1]). In addition, defendant raised a triable issue as to whether the court had personal jurisdiction (see CPLR 5015 [a] [4]), and was entitled to a traverse hearing on that issue.

Inasmuch as defendant raised a substantial issue as to whether, based on his out-of-state residency, the District Court acquired jurisdiction over defendant (see CPLR 5015 [a] [4]), we further conclude that defendant is entitled to restitution of any money that plaintiff obtained [*2]through the garnishment of defendant's bank account (see CPLR 5015 [d]).

We do not consider documents defendant has provided to this court, which he has offered for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the order is reversed, the judgment is vacated, the matter is remitted to the District Court of Nassau County, First District, for a traverse hearing, and plaintiff is directed to pay defendant restitution of any money it has obtained through the garnishment of defendant's bank account.

Iannacci, J.P., Tolbert and Connolly, JJ., concur.


Decision Date: February 22, 2016