Opinion
6632–08
04-09-2018
CYPRESS FINANCIAL RECOVERIES LLC, Plaintiff, v. Michael D. MORRIS, Defendant.
Todd E. Houslanger, Esq.m Houslanger & Associates, PLLC, Attorney for Judgment Creditor CDR Equities, LLCSuccessor to Plaintiff, 372 New York AvenueHuntington, NY 11743 Linda Carole Morris, Esq., Attorney for Defendant, New Rochelle, NY 10801
Todd E. Houslanger, Esq.m Houslanger & Associates, PLLC, Attorney for Judgment Creditor CDR Equities, LLCSuccessor to Plaintiff, 372 New York AvenueHuntington, NY 11743
Linda Carole Morris, Esq., Attorney for Defendant, New Rochelle, NY 10801
Adam Seiden, J.
A default judgment was entered against defendant on June 16, 2009 in the amount of $1,228.73. Per the affidavit of service, service was purportedly made on defendant via conspicuous place service on January 7, 2009 at 9:45 am at 1 Park Lane, Apt. # 1E, Mount Vernon, NY 10550.
Attorney Linda Morris has now filed an order to show cause, dated February 15, 2018, to vacate the judgment. In support of the motion, she has submitted an affidavit indicating that defendant had not been served with the summons and complaint and first learned of the action after a restraining notice was placed on his bank account. The affidavit, however, is not signed by the defendant; it is signed by Ms. Morris. The Answer In Person and Verification is also signed by defendant's attorney and not defendant himself.
In opposition to the motion, Attorney Todd Houslanger, states that his firm represents the current Judgment Creditor, CDR Equities LLC, successor to plaintiff. A copy of Bill of Sale and Assignment of Accounts dated December 11, 2013 is attached to the motion as Exhibit A. Counsel argues that the order to show cause is defective and is of no probative value. Counsel argues that an attorney may not execute an Affidavit in the place of a client, especially since Ms. Morris cannot aver that she has personal knowledge of service, is not the defendant and her bank account is not restrained. Counsel states that defendant has also failed to demonstrate an excusable default and a meritorious defense. Counsel argues that the Answer is untimely, may not be filed post judgment and not properly verified. Counsel also argues that the defendant was properly served.
CPLR 5015 states that "The court which rendered a judgment or order may relieve a party from it upon such terms as may be just ... upon the ground of: 1. excusable default ... or 4. lack of jurisdiction to render the judgment ..." ( CPLR 5015(a) ). Where the defendant asserts a lack of personal jurisdiction as the ground for vacatur, the defendant need not demonstrate a reasonable excuse for the default or a meritorious defense ( European American Bank & Trust Co. v. Serota , 242 AD2d 363 (2d Dept 1997) ; see also Steele v. Hempstead Pub Taxi , 305 AD2d 401 (2d Dept 2003) ; Fia Card Services, N.A. v. Geoghan , 2016 NY Misc. LEXIS 4123; 2016 NY Slip Op 32203(U) (Sup. Ct. Suffolk Co. 2016).
It is well settled, however, that "a process server's affidavit of service constitutes prima facie evidence of proper service" ( Scarano v. Scarano , 63 AD3d 716 (2d Dept 2009) ). To rebut this presumption and succeed on a motion to vacate pursuant to CPLR 5015, the defendant must submit a sworn denial of receipt of service containing specific facts to refute the statements if the affidavit of the process server (Worldwide Asset Purchasing, LLC v. Smith , 2017 NY Misc LEXIS 1829; 2017 NY Slip Op 31010(U) (Sup. Ct. Suffolk Co. 2017) (citations omitted). Here, the defendant himself failed to submit such affidavit. Instead his attorney submitted an affidavit and answer with her signature.
[I]t has been a long-standing rule of law in this state that the interposition of the defense of improper service of process in a verified Attorney's answer is legally insufficient to require a traverse hearing as a matter of law. The supporting rationale is that the affirmation of an attorney without personal knowledge has no probative value, a nullity, and cannot support any motion for dispositive relief ( Zuckerman v. City Of New York , 49 NY2d 557 (1980). It has been more succinctly held that an answer by an attorney without personal knowledge is worthless ( Great Plains Capital Corp v. Levi , 36 Misc 3d 1236(A) (Civ Ct. Kings Co. 2012) (citation omitted).
In this case, the purported affidavit of facts and answer in this action are signed by defendant's attorney and not defendant, and therefore does not rebut the presumption of proper service and has no probative value (Id. ) (citations omitted).
Order to Show Cause denied.
The Court considered the following papers on this motion:
Order to Show Cause dated February 15, 2018;
Affidavit in support;
Answer.
Affirmation in Opposition dated March 1, 2018; Exh A–H.