Opinion
CV-56286-10/KI
02-02-2021
CITIBANK (SOUTH DAKOTA), N.A., Plaintiff, v. Vincent S CIGNA, Defendant.
Arslan Akhtar, Esq., Selip & Stylianou, LLP, 199 Crossways Park Drive, Woodbury, NY 11797, (516)-364-6006, Counsel for Plaintiff Vincent S Cigna, redacted, Brooklyn, NY 11228, Defendant Pro Se
Arslan Akhtar, Esq., Selip & Stylianou, LLP, 199 Crossways Park Drive, Woodbury, NY 11797, (516)-364-6006, Counsel for Plaintiff
Vincent S Cigna, redacted, Brooklyn, NY 11228, Defendant Pro Se
Sandra E. Roper, J.
Recitation, as Required by Cplr 2219(a), of the Papers Considered in the Review of this Motion
Notice of Motion & Affidavit of Service 1-2
Affirmation in Support & Exh. Annexed 3-4
Defendant Supplemental Affidavit in Support 5
INTRODUCTION
Plaintiff moves This Honorable Court by Notice of Motion pursuant to CPLR 2221 (d) for an Order granting Plaintiff Leave to Reargue Decision and Order of This Court dated December 4, 2019 Granting Defendant's Order to Show Cause to Vacate Judgment and Dismissal of this action for lack of in personam jurisdiction. For the reasons set forth below, Plaintiff's Motion for Leave to Reargue is DENIED; by This Court Sua Sponte Leave to Renew pursuant to CPLR 2221 (e) is GRANTED; Decision and Order of December 4, 2019 is hereby VACATED; ORDERED, All Stays shall remain in effect on any enforcement of said Judgment by Plaintiff or its agents or assigns and any Marshal or Sheriff of the City of New York; ORDERED, Traverse Hearing.
PROCEDURAL AND FACTUAL HISTORY
Plaintiff, as an original creditor, alleges Defendant entered into a revolving credit card agreement whereby authorizing Defendant to make purchases, receive cash advances and was obligated to reimburse Plaintiff in addition to finance charges. Plaintiff claims that Defendant defaulted on making of payments leaving an unpaid balance of $4,295.65. Therefore, Plaintiff commenced Consumer Debt Action for said unpaid balance. Summons and complaint dated May 14, 2010 and filed June 15, 2010 containing two causes of action, breach of contract and account stated. Plaintiff filed Default Judgment with Clerk of Court on September 20, 2010 which was entered on October 26, 2010 for a total judgment of $4,515.65. Defendant filed Order to Show Cause to vacate judgment on August 8, 2019, which was marked "Calendared in Error" on August 20, 2019. Defendant filed a second Order to Show Cause on September 13, 2019 which was adjourned from October 2, 2019 to December 4, 2019 and was granted to vacating judgment and dismissing action for lack of jurisdiction. Plaintiff failed to provide duly executed and filed Affidavit of Service, rather presenting an unsigned alleged Affidavit of Service. Thereafter, pursuant to Court's Case Summary, Archive File received January 10, 2020 and March 16, 2020, to be returned respectively on February 28, 2020 and April 30, 2020.
Plaintiff filed this instant Motion for Leave to Reargue on January 8, 2020, which was adjourned from January 23, 2020 to February 27, 2020. Court granted the Motion for Leave to Reargue upon the nonappearance of Defendant on February 27, 2020 to be heard on March 13, 2020. However, March 13,2020 was a Friday and pro-se Defendant made an application for adjournment for any weekday except Friday. Pro-se Defendant had been provided pro-bono services by Volunteer Lawyers Project, which did not appear on Fridays. Application for adjournment granted, no further adjournments, to Thursday, April 16, 2020. Quite tragically, Covid-19 Pandemic was inflicted like a vengeance. Governor's Executive Orders and Unified Court System Administrative Orders closed the physical courthouses and moved matters from in-person to virtual appearances for Emergency/Essential Matters by exponentially ramping up the court system's technological capacity. As such, this oral argument was administratively adjourned from April 16, 2020, June 15, 2020, July 13, 2020, September 1, 2020, November 2, 2020, and ultimately to January 20, 2021 upon which Virtual oral argument was held.
Underlying Oral Argument Held December 4, 2019
At oral argument of underlying Defendant's Order to Show Cause to Vacate Judgment, Plaintiff's overarching argument was premised on the presumption of proper service as evidenced by the alleged unsigned Affidavit of Service presented at the oral argument allegedly upon which the court clerk's default judgment is premised. However, the proffered paper titled "Affidavit of Service" was unsigned by alleged affiant process server, not notarized, not stamped nor dated as filed by Kings County Clerk. This paper was summarily rejected out of hand. Under no circumstances could such a paper be considered by This Court for the truth of what is contained therein. This Court was indeed quite flabbergasted that Plaintiff truly deemed this paper acceptable as "Affidavit of Service". Thereupon, Plaintiff, quite vehemently argued that This Court is mandated to take judicial notice of this paper as the "Affidavit of Service" since Default Judgment was entered by the Clerk of Court on October 26, 2010. Plaintiff argued, since Clerk of Court entered Default Judgment then this paper, titled "Affidavit of Service," notwithstanding being unsigned and unsworn must be accepted by Court as evidence for presumption of proper service which must be rebutted by Defendant. Plaintiff argued it was not its responsibility in opposing Defendant's OSC to produce a copy of the alleged duly executed Affidavit of Service. Rather, it's court's mandated duty to exercise judicial notice to accept this page of paper proffered as representation of affidavit of service as being consistent with clerk's issued default judgement. This Court unequivocally rejected this proffered paper as a nullity of no value and could not be considered as a basis upon which to exercise judicial notice. So entrenched in its argument, Plaintiff did not request an adjournment to produce a duly executed Affidavit of Service. Affiant Defendant sworn under penalty of perjury stated that he was not served. Plaintiff failed to provide probative evidence to prove service and rebut Defendant's sworn statement to the contrary. Thus, Plaintiff's failure to prove service thereby deprived This Court of in-personam jurisdiction over Defendant. Where this Court has no in-personam jurisdiction the only limited action within its authority is dismissal. Case was dismissed.
Post-Underlying Oral Argument
Plaintiff filed This instant Motion to Reargue pursuant to CPLR 2221 (d) which was granted without opposition and Defendant's non-appearance on February 27, 2020. This instant motion was ultimately argued at Virtual oral argument held on January 20, 2021.
DISCUSSION
LEAVE TO REARGUE: CPLR 2221(d)
Movant for leave to reargue underlying motion must persuade court that " matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion " is reversible error ( CPLR 2221 [d] ; Matter of Miness v Deegan , 41 Misc 3d 1206(A), 977 N.Y.S.2d 668 [A], 41 Misc.3d 1206(A), 977 NYS 2d 668, 2013 N.Y. Slip Op. 51601(U), 2013 WL 5480399, 2013 NY Misc LEXIS 4359 [U], 2013 WL 5480399, 41 Misc.3d 1206(A), 977 N.Y.S.2d 668 ; Bolos v Staten Island Hosp. , 217 A.D.2d 643, 629 NYS 2d 809 [2d Dept 1995] ; Schneider v Solowey , 141 A.D.2d 813, 529 NYS 2d 1017 [2d Dept 1988] ). It has been held that proper practice requires that motion for relief to reargue must be brought by order to show cause in lieu of by notice of motion for judicial economy and failure to do so may be sufficient basis for denial ( Application of Central States Paper & Bag Co., Inc. , 132 NYS 2d 69, 72 [Sup Ct, NY County 1954], aff'd mem 284 A.D. 841, 134 NYS 2d 271 [1st Dept 1954] ; Rubin v Dondysh , 147 Misc 2d 221, 222, 555 NYS 2d 1004 [Civ Ct, Queens County 1990] ). Nevertheless, it has also been held that CPLR 2221 (a) allows that said motions to reargue "shall be made, on notice, to the judge who signed the order ," as in herein ( Alta Apartments LLC v Wainwright, 4 Misc 3d 1009(A), 791 N.Y.S.2d 867 [A], 4 Misc.3d 1009(A), 791 NYS 2d 867, 2004 N.Y. Slip Op. 50797(U) [U], 2004 WL 1717573, 4 Misc.3d 1009(A), 791 N.Y.S.2d 867 [Civ Ct, NY County 2004] ). "A Motion to reargue is not an aggrieved party's second bite of the apple to present new or divergent arguments from its original failed arguments" ( 819 Realty Group LLC v Beast Fitness Evolved LLC , 2019 WL 4560432, 2019 NY Misc. LEXIS 5038 *14, 65 Misc.3d 1204(A), 2019 N.Y. Slip Op. 51496(U) [U], 8, 65 Misc 3d 1204(A) [A], 118 NYS 3d 367, 65 Misc.3d 1204(A), citing Giovanniello v Carolina Wholesale Off. Mach. Co., Inc. , 29 A.D.3d 737, 815 NYS 2d 248 [2d Dept 2006] ; Gellert & Rodner v Gem Community Mgt., Inc. , 20 A.D.3d 388, 797 NYS 2d 316 [2d Dept 2005] ; Pryor v Commonwealth Land Tit. Ins. Co. , 17 A.D.3d 434, 793 NYS 2d 452 [2d Dept 2005] ; Amato v Lord & Taylor, Inc. , 10 A.D.3d 374, 781 NYS 2d 125 [2d Dept 2004] ; Frisenda v X Large Enters. , 280 A.D.2d 514, 720 NYS 2d 187 [2d Dept 2001] ; Foley v Roche , 68 A.D.2d 558, 418 NYS 2d 588 [1st Dept 1979] ), nor does it allow aggrieved party to reargue the same issues already previously considered and decided by the court ( id, citing William P. Pahl Equip. Corp. v Kassis , 182 A.D.2d 22, 588 NYS 2d 8 [1st Dept 1992] ; Pro Brokerage v Home Ins. Co. , 99 A.D.2d 971, 472 NYS 2d 661 [1st Dept 1984] ).
In this instant reargument, Plaintiff circuitously and inconsistently argues that This Court erred as it overlooked the Affidavit of Service due to its unavailability at the time of the underlying oral argument of Defendant's OSC and court was mandated to take judicial notice of affidavit of service in court file by virtue of default judgment entered by clerk of court. Plaintiff argues that the fact of the authenticity of affidavit of service is established by virtue of the court clerk granting default judgment. Therefore, This Court's dismissal was unjust. A court clerk's issuance of default judgment is a ministerial act without judicial discretion nor judicial intervention which is subject to judicial scrutiny upon review premised on objection in dispute by OSC to vacate default judgment, as here. Nevertheless, Plaintiff omits to mention that at oral argument of the underlying OSC it proffered to the court as evidence of the authenticity of affidavit of service contained within the court file, a page of paper titled "Affidavit of Service" which was unsigned by alleged affiant process server, not notarized, not stamped nor dated as filed by Kings County Clerk. Plaintiff offered this unsworn page of paper for proof of the information contained therein as being representative substitute of affidavit of service contained in the court file upon which was premised the default judgment. Even in discounting the production of this page of paper purported to represent affidavit of service, Plaintiff admits in this reargument that affidavit of service was unavailable and therefore not presented to the court which vitiates it being overlooked by the court as required pursuant to CPLR 2221(d). Rather, this alleged unsigned page of paper representation of affidavit of service is not a fact whatsoever. Therefore, it can neither be overlooked nor misapprehended by virtue of its nullity.
JUDICIAL NOTICE
Plaintiff full-well should have appreciated that it failed in the first instance to produce a copy of the duly executed affidavit of service in underlying OSC. Upon court's rejection of page of paper purporting to represent affidavit of service, Plaintiff attempted to rectify its failure and omission by shifting its burden for zealous advocacy to the court, arguing that court is mandated to take judicial notice of affidavit of service premised upon page of paper and corroborated by court clerk's issuance of default judgment, which was outrightly rejected by court. "The burden is on the Plaintiff to prove compliance .... The Court will not search the record in order to review the affidavit of service" ( Wells Fargo Bank, N.A. v Stroman , 2020 WL 1450342, 2020 NY Misc LEXIS 1317 *18, 2020 N.Y. Slip Op. 30848(U) [U], 15). Plaintiff reargues same, which is again rejected.
It is well settled, judicial notice is generally discretionary, not mandatory, and is not so readily exercised where dispute asserted of the material to be taken judicial notice of pursuant to CPLR 4511. Where lower court has exercised its discretion to take judicial notice of affidavit of service, Kings County Appellate Term Second Department has held: "The county court took judicial notice of the original affidavit of service on file with the county clerk. In his summation, the client again raised personal jurisdiction in support of his request for dismissal. On appeal from a money judgment for the pool service, the court reversed, holding that the motion to dismiss should have been granted" ( Janko Pool Service, Inc. v Berelson , 145 A.D.2d 897, 897, 536 NYS 2d 232, 232, 1988 WL 139279, 1988 NY App Div LEXIS 13784 ); and held it reversible error for lower court to invoke its discretion to take judicial notice of disputed affidavit of service, dismissing action ( Bham v Wilson , 10 Misc 3d 72, 73, 809 NYS 2d 776, 776-777, 2005 NY Misc LEXIS 2583, 2005 WL 3115201, 2005 N.Y. Slip Op. 25495, 2). Moreover, Appellate Division Second Department reversed lower court's exercise of judicial notice of an affidavit in the court file in its most extensive decision on this issue:
"Judicial notice of law is covered under CPLR 4511. Judicial notice of adjudicative-type facts, however, has long been a matter of decisional law. The test is whether the fact rests upon knowledge or sources so widely accepted and unimpeachable that it need not be evidentiarily proven ( Hunter v New York, Ontario & W. R. R. Co., 116 N.Y. 615, 23 N.E. 9 ). The most obvious illustrations are matters such as calendar dates ( Mars Assocs. v New York City Educ. Constr. Fund, 126 AD Mars Assocs. v New York City Educ. Constr. Fund, 126 A.D.2d 178, 183, 513 N.Y.S.2d 125 ), and such unassailably established facts as, for example, geographical locations ( Northeastern Shares Corp. v International Ins. Co., 240 App Div 80, 269 N.Y.S. 351, affd 265 N.Y. 574, 193 N.E. 326 ) or sunrise times ( People v McCray, 61 A.D.2d 860, 401 N.Y.S.2d 908 ; see generally, 9 Wigmore, Ev idence § 2565, at 694 [Chadbourn rev ed]).
In some instances, and under certain circumstances, undisputed portions of court files or official records, such as prior orders or kindred documents, may be judicially noticed ( e.g., Matter of Allcity Ins. Co. [Kondak], 66 A.D.2d 531, 533, 413 N.Y.S.2d 929 ; People v Singleton, 36 A.D.2d 725, 318 N.Y.S.2d 818 ; People ex rel. Bloom v Collins, 277 App Div 21, 23, 97 N.Y.S.2d 579, affd 302 N.Y. 603, 96 N.E.2d 897 ; cf., Sleasman v Sherwood, 212 A.D.2d 868, 870, 622 N.Y.S.2d 360 ). No authoritative case has ever held, however, that an item may be considered and weighed by the finder of fact merely because the item, however unauthenticated and unreliable it may be, happened to repose in the court's file. Polygraph test results, for example, that are otherwise inadmissible ( e.g., Matter of Sowa v Looney, 23 N.Y.2d 329, 296 N.Y.S.2d 760, 244 N.E.2d 243 ) are not rendered admissible merely because they happen to be part of the paperwork filed with the court.
Several opinions in other jurisdictions have aptly and repeatedly commented on the seemingly widespread but mistaken notion that an item is judicially noticeable merely because it is part of the "court file" ( see, Sosinsky v Grant, 6 Cal App 4th 1548, 1564, 8 Cal Rptr 2d 552, 561 ; Bach v McNelis, 207 Cal App 3d 852, 864, 255 Cal Rptr 232, 238 ; Milton v State, 429 So 2d 804, 805 [Fla] ). Court files are often replete with letters, affidavits, legal briefs, privileged or confidential data, in camera materials, fingerprint records, probation reports, as well as depositions that may contain unredacted gossip and all manner of hearsay and opinion. Accordingly, we reject the plaintiff's argument that the affidavit in question was admissible as a judicially noticeable court record ( see, Matter of Crater Club v Adirondack Park Agency, 86 A.D.2d 714, 446 N.Y.S.2d 565, affd 57 N.Y.2d 990, 457 N.Y.S.2d 244, 443 N.E.2d 492 ; see also, Ernst v Child & Youth Servs., 108 F.3d 486, 498-499, cert denied 522 U.S. 850, 118 S.Ct. 139, 139 L.Ed.2d 87 ; Hinton v Department of Justice, 844 F.2d 126, 130, n 1 [3d Cir 1988] ; see generally, 8 Carmody Wait 2d, NY Prac § 56:31 ) "
( Ptasznik v Schultz , 247 A.D.2d 197, 198-199, 679 NYS 2d 665, 666-667, 1998 WL 790926, 1998 NY App Div LEXIS 11838 ). Further, in citing Ptaznik Appelllate Second Department more pointedly held, "a court should not take judicial notice of any court-generated document without affording the parties an opportunity to be heard on whether notice should be taken, and, if so, the significance of its content" ( Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 A.D.3d 121, 127, 73 NYS 3d 70, 75-76, 2018 WL 846295, 2018 NY App Div LEXIS 1075, 2018 N.Y. Slip Op. 01043, 2018 WL 846295, citing CPLR 4511 [a], [b] ; cf. Tirado v Miller, 75 A.D.3d 153, 160, 901 N.Y.S.2d 358 [2010] ). Clearly, a dispositive issue is whether the judicially noticeable matter is "disputed" ( Ptasznik v Schultz , 247 A.D.2d 197, 198-199, 679 NYS 2d 665, 666-667, 1998 WL 790926, 1998 NY App Div LEXIS 11838 ).
In the underlying OSC's Affidavit and Supplemental Affidavit, Defendant unequivocally disputes service. Plaintiff errs in its reargument where it conflates a disputed affidavit of service upon which confers jurisdiction upon This Court as opposed to "prior orders or kindred documents" contained within a court file ( Caffrey v North Arrow Abstract & Settlement Servs., Inc. , 160 A.D.3d 121, 127, 73 NYS 3d 70, 76, 2018 NY App Div LEXIS 1075, 2018 N.Y. Slip Op. 01043, 2018 WL 846295 [NY App Div 2d Dep't 2018] ). Affidavit of Service is the threshold document upon which confers authority to the court upon the party sought, to wit, in-personam jurisdiction. Without which, Court has no jurisdiction. "[T]he failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void" ( Lull v Van Tassell , 171 A.D.3d 1155, 1157, 100 NYS 3d 99, 102, 2019 WL 1782175, 2019 NY App Div LEXIS 3044, 2019 N.Y. Slip Op. 03038, 1., citing Krisilas v Mount Sinai Hosp. , 63 A.D.3d 887, 889, 882 N.Y.S.2d 186 [2009] ; see Emigrant Mtge. Co., Inc. v Westervelt , 105 A.D.3d 896, 897, 964 N.Y.S.2d 543 [2013] ). Plaintiff's failure, at a minimum, to produce a copy of an alleged duly executed, stamped and dated as filed in Kings County Civil Court, denied jurisdiction to This Court, notwithstanding clerk's ministerial issuance of default judgment, which is subject to judicial review upon being challenged. Consequently, Plaintiff's argument for the mandatory exercise of judicial discretion for the probative value of alleged affidavit of service which was denied at underlying OSC and is now reargued herein in an attempt for a second bite of the apple, is likewise denied.
LEAVE TO RENEW: CPLR 2221(e)
Plaintiff's introduction for the first time of a copy of a duly executed affidavit of service stamped as filed by court clerk is a new matter of fact. Pursuant to CPLR 2221 (d) (2) leave to reargue " shall not include any matters of fact not offered on the prior motion. " Jurists cannot "overlook" nor "misapprehend" facts that are not presented nor produced by the adversarial parties. Jurists are but blank canvases upon which the parties provide the facts as to the issue in controversy, to paint their respective parts of the picture, upon which the jurist completes the picture as she applies any and all law at her ken as deemed relevant to the legal reasoning to the ultimate completion of the picture, to wit, her decision. It is the zealous advocacy of all parties to present the relevant and material facts to the jurist, make its law-based arguments upon which it desires the jurist to rely upon. However, presiding jurist is not so constrained to limit its legally reasoned decision making merely upon the parties’ cited legal arguments and rebuttals. Rather, jurist is duty-bound in the interest of justice, fairness, and judicial economy to make a fully extensively reasoned decision regardless of parties’ failure to so do.
Consequently, although Plaintiff failed to move for leave to renew, This Court sua sponte shall deliberate leave to renew. CPLR 2221 (e) (2) requires that a leave to renew, " shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination. " Further, CPLR 2221 (e) (3) requires that leave to renew " shall contain reasonable justification for the failure to present such facts on the prior motion. " " The Second Department has repeatedly held that the additional evidence offered on a motion to renew must be either newly discovered or have been unavailable to the movant at the time of the prior application " ( Matter of Miness v Deegan, 41 Misc 3d 1206(A), 977 N.Y.S.2d 668 [A], 41 Misc.3d 1206(A), 977 NYS 2d 668, 2013 N.Y. Slip Op. 51601(U), 2013 NY Misc LEXIS 4359 [U], 2013 WL 5480399, 41 Misc.3d 1206(A), 977 N.Y.S.2d 668, citing Winograd v Neiman Marcus Group , 11 A.D.3d 455, 782 NYS 2d 753 [2d Dept 2004] ; Seltzer v City of New York , 288 A.D.2d 207, 732 NYS 2d 364 [2d Dept 2001] ; Delvecchio v Bayside Chrysler Plymouth Jeep Eagle , 271 A.D.2d 636, 706 NYS 2d 724 [2d Dept 2000] ). The Second Department has also held, " a court, in its discretion may grant renewal where the additional facts were known to the party seeking renewal at the time of the original motion, provided the moving party offers a reasonable justification for the failure to submit the addition of facts on the original motion " or if the moving party offers a reasonable excuse for not having presented those facts ( Granato v Waldbaum's, Inc. , 289 A.D.2d 289, 734 NYS 2d 498, 2001 NY App Div LEXIS 11962 ; see also Doviak v Finkelstein & Partners, LLP. , 90 A.D.3d 696, at 700-01, 934 N.Y.S.2d 467 [2d Dept 2011] ; Schenectady Steel Co. v Meyer Contracting Corp. , 73 A.D.3d 1013, at 1015, 903 N.Y.S.2d 58 [2d Dept 2010] ; Smith v State, 71 A.D.3d 866, at 867-68, 896 N.Y.S.2d 454 [2d Dept 2010] ; Surdio v Levittown Public School District, 41 A.D.3d 486, at 486-87, 837 N.Y.S.2d 315 [2d Dept 2007] ). Although Plaintiff, particularly as an original creditor, should have had a copy of the duly executed affidavit of service available, nevertheless it is found that since court fille was archived and the underlying OSC commenced as an ex-parte expedited emergency procedure, establishes reasonable justification for Plaintiff's failure. This Court therefore exercises its judicial discretion to admit duly executed affidavit of service stamped and filed by Kings County Civil Court as probative new fact. The other prong of CPLR 2221 (e)(2) further requires that introduced new fact must also be deemed to change the outcome of the prior underlying decision. Herein it does.
TRAVERSE HEARING
Upon admittance of this new fact of the affidavit of service it is well settled:
"Ordinarily, a process server's affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service ( see US Bank N.A. v Ramos , 153 A.D.3d 882, 884, 60 NYS 3d 345 [2017] ; Wells Fargo Bank, NA v Chaplin , 65 A.D.3d 588, 589, 884 NYS 2d 254 [2009] ). "A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit" ( Washington Mut. Bank v Huggins , 140 A.D.3d 858, 859, 35 N.Y.S.3d 127 [2016] ). "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" ( id. at 859 ; see Wachovia Bank, N.A. v Greenberg , 138 A.D.3d at 985 ; Machovec v Svoboda , 120 A.D.3d 772, 773-774, 992 NYS 2d 279 [2014] )"
( Lull v Van Tassell , 171 A.D.3d 1155, 1157-1158, 100 NYS 3d 99, 102, 2019 WL 1782175, 2019 NY App Div LEXIS 3044, 2019 N.Y. Slip Op. 03038, 1). In this instant matter, Defendant provides sufficiently specific detailed facts that contradict the affidavit of service, further bolstered by Plaintiff's admission against its own interest that its introduced photos of Defendant's address are incorrect. Thus, to determine the validity and credibility of service of process warrants a Traverse Hearing.
For the foregoing reasons, Plaintiff's Motion for Leave to Reargue pursuant to CPLR 2221 (d) is hereby DENIED; by This Court Sua Sponte Leave to Renew pursuant to CPLR 2221 (e) is hereby GRANTED; Decision and Order of December 4, 2019 is hereby VACATED; ORDERED, All Stays shall remain in effect on any enforcement of said Judgment by Plaintiff or its agents or assigns and any Marshal or Sheriff of the City of New York; and ORDERED, Traverse Hearing.
The foregoing constitutes the opinion, decision, and order of This Honorable Court.