Opinion
Index No. CV-006680-15/NY
05-20-2022
Edward ALPER, Plaintiff, v. Valentina KOUCHNEROVA and Tak-Gwen Yung a/k/a Tom Yung, Defendants.
Solomos & Storms, New York City (Derrick Storms, of counsel), defendants. Edward Alper, plaintiff pro se.
Solomos & Storms, New York City (Derrick Storms, of counsel), defendants.
Edward Alper, plaintiff pro se.
Richard Tsai, J.
In this post-judgment action for unpaid legal fees, defendants-judgment debtors Valentina Kouchnerova and Tak-Gwen Yung a/k/a Tom Young move, by order to show cause, for a restraining order and preliminary injunction to stay a Kings County Sheriff's sale, scheduled for October 6, 2021 at 10 a.m. of certain real properties located at 537-A, 539 and 541 Greene Avenue, Brooklyn, New York 11216, and to indefinitely stay any sale of defendants’ property—including but not limited to the above three properties. Defendants also appear to move to vacate a default judgment in the amount of $27,610.79, entered against them on September 9, 2016, and to dismiss the action for lack of personal jurisdiction, pursuant to CPLR 5015 (a) (4), among other relief (Motion Seq. No. 001). Plaintiff opposes the motion.
BACKGROUND
On March 24, 2015, plaintiff commenced this action against defendants to recover unpaid legal fees in the amount of $23,488.95 and alleging three causes of action: breach of contract, account stated and unjust enrichment (defendants’ exhibit 2 in support of motion [summons and endorsed complaint]).
According to the affidavits of service, on May 13, 2015 at 2:25 p.m., a process server affixed a copy of the summons and complaint upon defendants’ dwelling place located at 2301 Collins Avenue, Apt. 1621, Miami Beach, FL 33139 (defendants’ exhibit 3 in support, affidavits of service). A copy of the summons and complaint in an envelope marked "Personal and Confidential" was also purportedly sent by first class mail to defendants at the same address on May 14, 2015 (id. ). The process server had allegedly made five prior attempts to serve defendants or a person of suitable age and discretion on: April 21, 2015 at 8:30 p.m.; April 23, 2015, at 9:35 a.m.; April 29, 2015 at 11:45 a.m.; May 2, 2015 at 3:05 p.m.; and May 7, 2015 at 9:00 p.m. (id. ). These affidavits of service bear stamps from the New York County Civil Court noting that they were "RECEIVED" on June 3, 2015. A certificate of conformity for the affidavits of service appears to have been subsequently executed on July 13, 2015, by an attorney admitted to practice law in Florida.
On September 9, 2016, the Clerk of the Court entered a default judgment against defendants in the total amount of $27,610.79.
On September 28, 2021, defendants’ counsel brought this order to show cause which another judge of the Civil Court signed and made returnable on October 26, 2021. Pending hearing and determination of the order to show cause, the sale was stayed.
In support of the order to show cause, defendants argue in sum and substance that: (1) defendants did not receive proper notice of the Sheriff's Sale pursuant to CPLR 5236 (c) and (d) ; (2) that this court "lacks personal jurisdiction over the Defendants because the attempted ‘affix and mail’ service of the Summons and Complaint was defective and the Default Judgment is null and void and should not be enforced"; and (3) the three rental properties are "worth approximately $3 million" and their sale "to satisfy a small Judgment" is "an excessive remedy" and should therefore be "prohibited" pursuant to CPLR 5240 (affirmation of defendant's counsel in support ¶ 2).
This motion was subsequently adjourned twice and then submitted on February 22, 2022, after which the motion was assigned to this court for decision.
DISCUSSION
As mentioned, the issues before this court are: (1) whether defendants were provided with proper notice of the sale, pursuant to CPLR 5236 (c) ; (2) whether this court lacks personal jurisdiction over defendants; and (3) whether this court should prohibit the sale of the subject rental properties on the ground that it is "an excessive remedy" (affirmation in support ¶ 2).
Although defendants also object to service pursuant to CPLR 5236 (d), this subsection is irrelevant as it relates to a "notice of postponement."
I. Whether Defendants Received "Proper Notice" of the Sheriff's Sale Pursuant to CPLR 5236 (c)
Defendants assert that they were never served with a copy of the notice of sale, and that "they became aware of the Sheriff's Sale of our Rental Properties by our tenant" (affidavits in support of motion ¶¶ 7-8).
In opposition, plaintiff puts forth the affidavits of service of the notice of sale (plaintiff's first affirmation in opposition, Exhibit V). These affidavits of service, dated July 29, 2021, state that the notice of sale was "affixed to premises" of the last known address of defendants at "2301 Collins Avenue, #1621, Miami Beach, FL 33139" on July 28, 2021 and that a subsequent mailing was made to the same address (id. ). The affidavits further state that service was previously attempted at the same address on July 22, 2021 at 4:00 p.m. and on July 26, 2021 at 3:55 p.m. (id. ).
The court notes that plaintiff submitted a nine-paragraph "supplemental affirmation," dated February 11, 2022 in which he directs the court's attention to DRP-189 (available at https://nycourts.gov/courts/nyc/SSI/directives/DRP/DRP189.pdf [accessed on 5/18/2022] ). Several days later, on February 16, 2022, defendants filed a "notice of rejection," along with their reply affirmation, in which they stated that "because the Supplemental Affirmation is an impermissible filing, the document is rejected in its entirety." Defendants, however, have not shown that they were prejudiced by the filing of the supplemental affirmation. Further, the court notes that the supplemental affirmation merely directs the court's attention to a Civil Court Directive, with which this court should be familiar. Thus, pursuant to CPLR 2001, the court will consider the supplemental affirmation.
In reply, defendants do not further dispute whether the notice of sale was properly served.
A process server's affidavit of service gives rise to a presumption of proper service (see Machovec v Svoboda, 120 AD3d 772, 773 [2d Dept 2014] ; Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216, 220-221 [2d Dept 2011] ). " ‘In order to warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service’ " ( Deutsche Bank Natl. Tr. Co. v Hossain , 187 AD3d 986, 987 [2d Dept 2020] [citation omitted]); Capital Equity Mgt., LLC v Carrozza , 65 Misc 3d 153[A], 2019 NY Slip Op 51888[U] [A] [App Term, 2d Dept, 2d, 11th and 13th Jud Dists].
The court finds that defendants have failed to rebut the presumption of service with "specific, detailed facts that contradict the affidavit of service" ( Deutsche Bank Natl. Tr. Co. , 187 AD3d at 986 ). Moreover, as defendants have not raised any other objections to service of the notice of sale—other than mere denial of receipt—any other objections are deemed waived ( Bosco Credit V Tr. Series 2012-1 v Johnson , 177 AD3d 561, 562 [1st Dept 2019] ).
II. Whether This Court Lacks Personal Jurisdiction
Under CPLR 5015 (a) (4), a default judgment may be vacated for lack or jurisdiction, which includes lack of service of process. "Where there is ‘a defense of lack of personal jurisdiction, a defendant need not show a reasonable excuse and meritorious defense’ " ( Wells Fargo Bank, N.A. v Jones , 139 AD3d 520, 523 [1st Dept 2016] [citation omitted]). If the court finds that it did not have personal jurisdiction over defendant, not only would the default judgment be vacated, but the action would also be dismissed for lack of personal jurisdiction (see Avis Rent A Car Sys., LLC v Scaramellino , 161 AD3d 572, 573 [1st Dept 2018] ; Wells Fargo Bank, N.A. , 139 AD3d at 523 ).
To the extent that defendants are also asking this court to vacate the default judgment for excusable default, pursuant to CPLR 5015 (a) (1), this court denies that request, as the mere assertion that "[w]e did not receive notice of the action and service was defective" is insufficient to rebut the presumption of service established by the process server's affidavit (affidavits of defendant in support ¶ 30; Deutsche Bank Natl. Tr. Co. v Hossain , 187 AD3d 986, 987 [2d Dept 2020] ).
Here, defendants do not dispute the process server's affidavits with any "specific, detailed facts" ( Deutsche Bank Natl. Tr. Co. , 187 AD3d at 986 ). Rather, defendants argue that service on them was defective for several reasons. First, citing the affidavits of service, defendants argue that "the affixing and mailing did not occur within 20 days of each other " pursuant to CPLR 308 (4), in that they contend that the process server affixed the summons and complaint to the front door of their Miami Beach, Florida address on April 20, 2015, and then—"23 days later "—on May 14, 2015, mailed the summons and complaint to the same address (first affirmation in support ¶¶ 40-41).
Second, defendants argue that, when the affidavits of service were filed with the court on June 3, 2015, they did not contain a certificate of conformity, and the certificate of conformity was not signed until July 13, 2015—41 days later (id. ¶¶ 42-54). Defendants argue that because a certificate of conformity was not annexed to the affidavits of service, the affidavits of service were "inadmissible" when they were filed (id. ¶ 44). Defendants also argue:
"[T]he Certificate of Conformity failed to verify that the signer confirmed the identity of the person who signed the Affidavits of Service—nor could he—because the Certificate of Conformity was signed 41 days after the Affidavits of Service were notarized and there was no personal knowledge of the method and manner in which the Affidavits of Service were notarized"
(id. ¶ 47).
In opposition, plaintiff notes that "Defendants never deny being served with the Summons and Endorsed Complaint" (affirmation in opposition ¶ 36).
With regard to defendants’ argument that affixing and mailing of the summons and complaint did not occur within 20 days of each other, plaintiff argues that this "argument is false, and stems from a misreading of the Affidavits of Service" (id. ¶ 39). Plaintiff argues that the affidavits of service clearly state that the affixing actually occurred on May 13, 2015 — the day before the summons and complaint were mailed. Plaintiff argues that the affidavits of service are clear that April 20, 2015 is "the date on which the process server, OJF Services, Inc., first received the Summons and Endorsed Complain from me, to be served on Defendants" (id. ¶ 40).
Regarding defendants’ argument that the affidavits of service were not timely filed with the court, plaintiff points out that the affidavits of service were stamped "RECEIVED" by the Civil Court on June 3, 2015, which is within twenty days from when the process server mailed copies of the summons and complaint to defendants. Plaintiff does not contest defendants’ argument that the certificate of conformity was not annexed to the affidavits of service when they were filed with the Civil Court on June 3, 2015. Rather, plaintiff argues that "[t]here is no statutory deadline governing when the Certificate of Conformity must be filed" (id. ¶ 49).
The court agrees with plaintiff. With regard to the timing of the affixing and mailing in this case, the affidavits of service clearly state that the affixing occurred on May 13, 2015 and that the mailing occurred on May 14, 2015—within one day of each other, not 23 days. As plaintiff correctly notes, and the affidavits of service clearly state, April 20, 2015 was the day that the process server "received" a copy of the summons and complaint (from plaintiff).
Defendants’ argument that the affidavits of service were not timely filed is unavailing. As an initial matter, defendants do not contest that the affidavits of service (as annexed to their moving papers as Exhibit 3) were filed with the Civil Court on June 3, 2015. Rather, defendants argue that the affidavits of service were "inadmissible" because at that time there was not a certificate of conformity annexed to them. However, as plaintiff correctly notes, there is no statutory deadline for the filing of a certificate of conformity. Indeed, the policy of this court system is that when an out-of-state affidavit is filed without a certificate of conformity, the clerk is to accept it, "flag" the affidavit, and "advise" the filer that a certificate of conformity "must accompany" the affidavit (DRP-189, available at https://nycourts.gov/courts/nyc/SSI/directives/ DRP/DRP189.pdf [accessed on 5/18/2022]).
Even if the court were to accept the argument that the affidavits of service were not technically filed until the certificate of conformity was filed, this would not be a jurisdictional defect ( Ward v Kaufman , 120 AD2d 929, 930 [4th Dept 1986] ["The failure to file a timely affidavit of service is not a jurisdictional defect, but merely a procedural irregularity which can be cured by an order nunc pro tunc"]). Rather, it would only give defendants additional time to timely answer the complaint ( Reporter Co., Inc. v Tomicki , 60 AD2d 947, 947 [3d Dept 1978] ["The purpose of requiring the filing of proof of service pertains to the time within which the defendant must answer and does not relate to the jurisdiction acquired by the court upon the service of the summons"]; see also Rodriguez v Rodriguez , 103 AD3d 117, 123 [2d Dept 2012] ["there is no deadline to file proof of service in an action commenced in the Civil Court. In practical terms, this means that a defendant's time to answer a complaint in the Civil Court is not triggered until proof of service is filed, unless that defendant was personally served"] [citation omitted]).
The court also rejects defendants’ arguments that the certificate of conformity was inherently defective because it was executed over a month after the affidavits of service were executed ( Hall v Elrac, Inc. , 79 AD3d 427, 428 [1st Dept 2010] ["as long as the oath is duly given, authentication of the oathgiver's authority can be secured later, and given nunc pro tunc effect if necessary"]).
Having rejected defendants’ arguments that service was defective and defendants having failed to point to any "specific, detailed facts that contradict the affidavit[s] of service" so as to warrant a traverse hearing, this court denies the branch of the instant motion seeking to vacate the judgment ( Deutsche Bank Natl. Tr. Co. v Hossain , 187 AD3d 986, 987 [2d Dept 2020] ).
III. Whether the Court Should Enjoin the Sheriff's Sale on the Grounds that It Is an "Excessive Remedy"
Judgment creditors have "the right to avail themselves of any remedy which the Legislature provided as a means of or an aid in collecting their judgment" ( Bono Sawdust Supply Co. v Hahn & Golin , 3 AD2d 221, 226 [2d Dept 1957] ). However,
"[p]ursuant to CPLR 5240, a court may, on its own initiative or on motion, stay the enforcement of a judgment. The purpose of this broad discretionary power is to permit the trial court to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the court"
( Castle Restoration & Constr., Inc. v Caste Restoration, LLC , 155 AD3d 678, 682 [2d Dept 2017] [internal quotation marks omitted]; Chrysler Fin. Servs. Ams. LLC v Morante , 50 Misc 3d 126[A], 2015 NY Slip Op 51848[U] [App Term, 1st Dept 2015] ).
Here, defendants ask this court to prohibit a future sheriff's sale on the grounds that "[s]elling Defendants’ three Rental Properties valued at approximately $3 million dollars [sic] to satisfy a $27,415.49 Judgment is an excessive and inequitable remedy" (affirmation in support ¶ 57). Defendants further assert that these three rental properties are their "sole source of income to support our family" (affidavit in support of motion ¶ 41). Defendants further contend that they cannot find income elsewhere because they have "not held a job in over 20 years" and lack a "college education" (id. ¶ 38). Defendants assert that the loss of these properties will cause additional hardship because they have college-age children (id. ¶¶ 44-45). Defendants further assert that "the majority of our tenants have not paid rent to us since the beginning of the COVID-19 pandemic" (id. ¶ 42).
In opposition, plaintiff asserts that defendants in fact own a total of seven properties, and, notwithstanding this, defendants "take the outrageous position that they shouldn't have to pay for my services" (first affirmation in opposition ¶ 58; see also plaintiff's Exhibit X [defendants’ deeds]). Plaintiff argues that "the sensible thing for Defendants to do would have been to sell the three properties, make $3 million, retain the other four properties for both living (Miami Beach) and rental income (Fresh Meadows and the condominium in Brooklyn)" (first affirmation in opposition ¶ 63). Plaintiff asserts that other than their conclusory assertions, defendants "have not established at all that the Sheriff's Sale of the properties will leave them ‘completely impoverished, destitute and hopeless’ " (id. ¶ 65, quoting affirmation in support ¶ 67). In contrast to defendants’ claims of poverty, plaintiff asserts that during the pandemic, when "[t]he Housing Courts were closed for an extended period of time," his landlord-tenant practice was "decimated" and he had "to apply for two (2) PPP loans and an EIDL loan to support my family and pay bills" (id. ¶ 64).
Here, this court is not persuaded that a sale of the subject properties to satisfy the judgment would constitute unreasonable annoyance, abuse or any other ground to warrant the exercise of this court's discretion to stay the sheriff's sale. Defendants do not reside on the properties to be sold. Generally speaking, plaintiff would recover from the proceeds of the sale only that which would be necessary to satisfy the outstanding judgment. To the extent that defendants are asserting that plaintiff would receive a windfall, defendants "can avoid this result by satisfying the judgment" ( 79 Madison LLC v Ebrahimzadeh , 203 AD3d 589 [1st Dept 2022] ).
Notably, defendants have not offered any smaller asset to be sold by which plaintiff can be made whole. While the court might have considered whether the sheriff's sale could be limited to just one of the three properties, there is not enough information in the record that each of the three properties are actually situated on separate lots that could be sold separately, or if such sale would bring, in the judgment of the sheriff, the highest price (see CPLR 5236 [a] ).
Of course, the parties are also free to negotiate alternatives to the sale, such as defendants’ obtaining a loan secured by a mortgage on the properties, or an assignment to plaintiff of the rental income generated from the properties, if any.
Accordingly, the branch of the instant motion seeking, in effect, a protective order barring the sheriff's sale is denied.
CONCLUSION
Upon the foregoing cited papers, it is hereby ORDERED that defendants’ motion (Motion Seq. No. 001), by order to show cause, to vacate the default judgment entered on September 9, 2016 and to dismiss the action for lack of personal jurisdiction and for a restraining order and preliminary injunction to stay a Kings County Sheriff's sale, scheduled for October 6, 2021 at 10 a.m. of certain real properties located at 537-A, 539 and 541 Greene Avenue, Brooklyn, New York 11216, and to indefinitely stay any sale of defendants’ property—including but not limited to the above three properties—is DENIED .
This constitutes the decision and order of the court.