Defendant Jason N. Burk ("Defendant") has brought the instant Motion under CPLR § 5015 subsections [3] and [4] against Plaintiff Anthony E. Piana DDS, PC. ("Plaintiff") to, inter alia, vacate Defendant's default judgment, order a traverse hearing, order an inquest into damages, compelling Plaintiff to return the money that has been paid, and declaring the income execution by the Utica City Marshall to be null and void.

The undisputed facts are that Plaintiff obtained a judgment against Defendant which was entered on November 13, 2009, based on the Defendant's default. The Affidavit of Service of Summons indicates that proper service was made upon a Brian Burk together with an Affidavit of Mailing of a Copy of the Summons to the Defendant. However, the Defendant alleges that the service was improper because: Defendant was not properly served; the substituted service was improper; and, Defendant actually lives at 809 vice 807 Military Road. The Defendant further alleges that the default judgment is improper because insufficient proof of the claim was submitted under CPLR § 3215 [f]. The Defendant further alleges that the Utica City Marshall executed the judgment outside of his statutory authority under UCCA §§ 701[a] and 1504.

The matter proceeded to oral argument on the motions on May 12, 2022 where counsel for both parties were heard. Plaintiff's attorney appeared virtually on consent via Microsoft Teams. Defendant's attorney appeared in court in person.

Counsel for the Defendant also sent a letter on notice to all parties dated February 2, 2022 requesting that if the matter "is assigned to Judge Bannister, we ask the judge to recuse himself so my client can have a fair and full hearing on his argument." This request is presumably based on my denial of the previously filed order to show cause which I denied. I have reviewed the application and determined that I can distinguish the issues and make an objective determination according to the individual merits of this individual motion despite the [*2]fact that I may be aware of the facts that may be relied on from prior proceedings. Accordingly, I denied the application for my recusal on the record.

This Court has reviewed the Defendant's motion as well as the reply affirmation in opposition, and considered the arguments of counsel that were made on the record. Although motions for this type of relief are typically brought under CPLR § 317, that section is inapplicable because of the passage of time. However, this motion is properly before the court because I find that there are no passage of time provisions under CPLR § 5015 subsections [3] and [4]. Having carefully considered the arguments of counsel as well as the supporting affidavits and memorandum of law, this Court finds that service was proper and reasonably calculated under the circumstances because: Defendant placed 807 Military Road on documents filed with the Plaintiff's office; both 807 and 809 Military Road seem to occupy the same plot of land and anyone trying to find someone at either 807 or 809 Military Road would find themselves at the same plot of land; it is not clear how the buildings that constitute 807 and 809 Military Road are readily distinguishable to any member of the public who had to distinguish between the two; and, it appears that the Plaintiff complied with the substituted service requirements as detailed in the affidavits of service.

This Court declines to address the appropriateness of the Utica City Marshall's execution on this judgment because this Court does not have jurisdiction to review the debt collection practices of the Utica City Marshall. Any issues that the Defendant debtor has with the Utica City Marshall's debt collection practices will have to be addressed through any other appropriate legal venue.

In any event, this Court finds that CPLR § 3215 [f] in the context of an application for a default judgment requires a plaintiff to submit "proof of the facts constituting the claim, the default and the amount due by affidavit made by the party". Failure of a trial court to conduct this inquest in the context of professional services and other matters that are not for a sum certain is reversable error — even when the movant fails to raise a reasonable excuse or meritorious defense (see: Bitzios v. Michelakis, 89 AD3d 779 [2nd Dept 2011]; Gleich & Associates v. Gritsipis, [2nd Dept 2011]).

On the evidence before the Court, it is hereby ORDERED:

1. That the Statement for Judgment of this Court entered on November 13, 2009, in the amount of $1,624.89 is hereby vacated;

2. That a hearing on the proper assessment of damages shall be scheduled for May 27, 2022, at 9:15 a.m.; and,

3. That pending the assessment of damages and the entry of a new judgment, any monies collected as payment on the default judgment entered November 13, 2009, shall continue to stand as security.

This is the Decision and Order of this Court.