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

Papers Numbered

Order to show Cause/ Notice of Motion and

Affidavits /Affirmations annexed 1-2

Supplemental Affidavits filed Oct. 1, 2025 3

Answering Affidavits/ Affirmations 4

Upon the foregoing cited papers, and after argument, the Decision and Order to Show Cause on the Defendant's Order to Show Cause is decided as follows:

Plaintiff STAND UP MRI OF MANHATTAN, P.C. (hereinafter "Plaintiff") commenced this action against defendant TONI DAMURA ("Defendant") for breach of contract. On May 15, 2008, Plaintiff filed an Affidavit of Service with the Court showing that service was made on May 10, 2008, pursuant to CPLR 308(2). The Court granted a default judgment in favor of Plaintiff upon Defendant's failure to provide a timely response, and a judgment was entered on July 28, 2008, in the amount of $3,341.98.

The Defendant filed an Order to Show Cause to vacate the judgment and dismiss the action, claiming that she failed to appear because she was never served. The Defendant also filed supplemental paperwork, which included an affidavit of Grace Schmidt. Plaintiff filed an affirmation in opposition. Argument was heard on October 22, 2025, before the undersigned, and the motion was marked submitted.

CPLR 5015(a)(4) permits a court which rendered a judgment to relieve a party on the grounds of lack of jurisdiction to render such judgment. In support of his motion for vacatur, Defendant alleges that this Court never had personal jurisdiction over the Defendant because she was never properly served pursuant to CPLR 308.

A process server's affidavit of service ordinarily gives rise to a presumption of proper [*2]service (Wells Fargo Bank, NA v Chaplin, 65 AD3d 588 [2d Dept 2009]). A defendant's bare, unsubstantiated denial of service is insufficient to rebut the presumption of proper service established by the duly executed affidavit of plaintiff's process server (Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724 [2d Dept 2013]). A defendant will necessitate the need for a hearing when she swears to specific facts to rebut the statements in the process server's affidavit (U.S. Bank, Natl. Assn. v Arias, 85 AD3d 1014 [2d Dept 2011]; Scarano v Scarano, 63 AD3d 716 [2d Dept 2009]; Simonds v Grobman, 277 AD2d 369 [2d Dept 2000]).

The Defendant filed this application arguing that she was never served with the summons and complaint. She also claims that, while disputing she received the billed services, all medical bills should have been covered by the World Trade Center Health Program.

The affidavit of service states that service was made, pursuant to CPLR 308(2), at 301 Buel Avenue, Staten Island, New York. Defendant stated that she never resided on Buel Avenue and has not lived on Staten Island since 2006. To support her argument, Defendant submitted the affidavit of Grace Schmidt. Ms. Schmidt avers that her company, Mayflower Van Lines, helped the Defendant move in December 2006 from an address on Tillman Street, Staten Island, to an address in Brooklyn. The Plaintiff did not present any evidence to establish it had served the Defendant at the proper address.

During argument, Plaintiff made several arguments regarding an email purportedly sent by the Defendant to Plaintiff's counsel in 2022. Plaintiff argued that the Defendant's delay in bringing this application bars any chance of vacatur. Firstly, Plaintiff fails to lay any proper foundation for the Court to consider the email as an admissible business record. Secondly, even if the Court were to consider the email, the Plaintiff's argument is misplaced. The one-year requirement is only applicable when seeking vacatur based upon excusable default, not lack of jurisdiction (see CPLR 5015(a)(1)).

Plaintiff also argues that the Defendant waived any jurisdictional defense since the Defendant's wages were previously garnished in March of 2021. A defendant may waive a defense of lack of personal jurisdiction by making payments pursuant to a wage garnishment for an extended period of time, (see Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627, 628 [2d Dept 2014]). The Court again finds this argument unpersuasive. In support of its opposition, the Plaintiff annexes a "Garnishee's Answer to Income Execution" dated March 24, 2021. However, this document fails to establish that it ever actually garnished the Defendant's pay. All the Court has before it is a document showing the Defendant's employer responded to the Plaintiff's income execution. Surely if the Defendant's pay had been previously garnished, the Plaintiff would have more definitive proof of the garnishment, along with the amount collected to date. As such, the Plaintiff's argument of waiver is not supported by the evidence presented.

In this matter, the Defendant has credibly established she was not living at the address where service was made. Therefore, a traverse hearing would be unnecessary, as the Court has determined that the address where service was made was improper. As the Court finds that the Defendant was not properly served, the Defendant need not demonstrate a reasonable excuse for her default or a meritorious defense (see Bank of Am., N.A. v City of NY Dept. of Hous. Preserv. & Dev., 211 AD3d 661, 663 [2d Dept 2022]).

Accordingly, it is hereby

ORDERED that the Defendant's order to show cause is GRANTED in its entirety; and it is further

ORDERED that the judgment is VACATED, and the matter is DISMISSED.

This is the decision and order of the Court.