Opinion
19-0191
11-22-2019
Jones HERRING, Plaintiff, v. Gilbert BAGNELL, Defendant.
JULIE SOLOMON, ESQ., Solomon and Solomon, P.C., Columbia Circle, Box 15019, Albany. NY 12212, Attorney for Plaintiff JONATHAN E. COHN, ESQ., PO Box 310/104 The Concourse, Niverville, NY 12130, Attorney for Defendant
JULIE SOLOMON, ESQ., Solomon and Solomon, P.C., Columbia Circle, Box 15019, Albany. NY 12212, Attorney for Plaintiff
JONATHAN E. COHN, ESQ., PO Box 310/104 The Concourse, Niverville, NY 12130, Attorney for Defendant
Raymond J. Elliott III, J.
"As any first-year law student knows, when service of process is ineffective a court does not acquire personal jurisdiction over a party, and a default judgment resulting from such defective service is void" ( Bank United v. Hamlett , 286 BR 839, 843 n 3 [W D Va 2002], affd 47 Fed Appx 673 [2002], citing Pennoyer v. Neff , 95 US 714 [1877] ). It is likewise fundamental that objections based on personal jurisdiction are waivable (see Burger King Corp. v. Rudzewicz , 471 US 462, 473 n 14 [1985] ["personal jurisdiction requirement is a waivable right"]; Gager v. White , 53 NY2d 475, 488 [1981] ["Unlike subject matter jurisdiction, which limits the power of a particular court rather than the judicial jurisdiction of the State en gros , a defect in basis jurisdiction is waivable"]; Garner v. Houck , 312 SC 481, 487 [1993] ["The failure to assert improper service ... waives any issue regarding the service"] ).
Defendant was counsel for Plaintiff in a South Carolina action that led to Defendant being disbarred in that state. Plaintiff commenced a civil action against Defendant for malpractice and Defendant defaulted on the issue of liability; however, he did appear and challenge the issue of damages, including on appeal. Ultimately, after an appeal to and remand from the South Carolina appellate court, Plaintiff was awarded $111,147.99 on February 1, 2016. Plaintiff filed a summons and complaint in New York seeking to domesticate the South Carolina judgment. Defendant joined issue asserting seven affirmative defenses, particularly that the South Carolina courts lacked personal jurisdiction, and he was denied due process based on the format of the damages hearing.
Statement of Facts
Defendant concedes that he was negligent in responding to Plaintiff when he represented him and failed to keep track of his file and to communicate diligently with him, as attorney ethics rules require. Defendant swears that, while there is evidence that service was made to his home, neither he nor his wife ever saw the complaint at the time and the signature on the return of service does not match his own. Defendant swears he became aware of the action in April 2011 when his former law partner, who was the registered agent for their firm, informed him of the existence of the complaint. He asserts he attempted to contact Plaintiff's counsel, but, after this attempt was unsuccessful, he chose to take no further action until he was properly served. At some undisclosed later date, he became aware that a default was entered against him and a hearing on the question of damages was "scheduled shortly." Defendant asserts he had "only a few days to obtain representation" and his first hire withdrew due to a conflict. He ultimately hired an attorney, whom he swears "to the best of [his] recollection" that he spoke to for the first time on the evening before the post-default damages hearing.
In South Carolina, once a defendant defaults on the issue of fault, they are only limited to cross-examination during the hearing on damages (see Roche v. Young Bros., of Florence , 332 SC 75, 82 [1998) ] ; Howard v. Holiday Inns, Inc. , 271 SC 238, 241—242 [1978] ). Defendant appeared through counsel and appealed the damages award as against the evidence. However, Defendant admits that he did not file a motion to set aside the default for lack of personal jurisdiction despite a remedy for such specifically existing in South Carolina law. Further, during the appearance, not only did Defendants' counsel not seek a continuance, but he specifically indicated that he was ready to proceed. The Court then in its ruling explicitly found that it had personal jurisdiction. Defendant appealed the ruling, but again the record does not show Defendant raising the issue of personal jurisdiction or a due process challenge to the format of the proceeding.
Summary Judgment
Summary judgment is a drastic remedy which will be granted only when the party seeking summary judgment has established prima facie entitlement to judgment as a matter of law by presenting competent evidence that there is no doubt as to the absence of a triable issue of fact (see Alvarez v. Prospect Hospital , 68 NY2d 320, 324 [1986] ; McDay v. State , 138 AD3d 1359, 1359 [3d Dept 2016] ). "The court's function on a motion for summary judgment is issue finding not issue determination" ( Gadani v. Dormitory Auth. of State of NY , 43 AD3d 1218, 1219 [3d 2007] ; see Lacasse v. Sorbello , 121 AD3d 1241, 1242 [3d Dept 2014] ), and this Court "must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom" ( Aretakis v. Cole's Collision , 165 AD3d 1458, 1459 [3d Dept 2018] ; see Healthcare Professionals Ins. Co. v. Parentis , 165 AD3d 1558, 1565 [3d Dept 2018] ).
The burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (see Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ; Davis v. EAB-TAB Enters. , 166 AD3d 1449, 1450 [3d Dept 2018] ). However, in opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form ... or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York , 49 NY2d at 562 ; accord Miller v. Lu-Whitney , 61 AD3d 1043, 1047 [3d Dept 2009] ; see Banco Popular North America v. Victory Taxi Management, Inc. , 1 NY3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment"] ). It is incumbent upon the non-moving party to "lay bare" his or her proof in order to defeat summary judgment ( O'Hara v. Tonner , 288 AD2d 513, 513 [3rd Dept 2001] ).
Full Faith and Credit
"The Full Faith and Credit Clause of article IV of the United States Constitution requires the courts of New York to enforce judgments rendered in other states, and precludes inquiry into the merits of the judgment" ( Buckeye Ret. Co., L.L.C., Ltd. v. Lee , 41 AD3d 183, 183-184 [1st Dept 2007] ; citing Fauntleroy v. Lum , 210 US 230 [1908] ). It is well settled that " ‘a default judgment of a sister state can be accorded full faith and credit’ " ( Ho v. McCarthy, 90 AD3d 710, 711 [2d Dept 2011], quoting Progressive Intl. Co. v. Varun Cont., Ltd. , 16 AD3d 476, 477 [2d Dept 2005] ). "In an action to enforce the judgment of a sister state, where the defendant raises the issue of lack of personal jurisdiction, this Court ‘must look to the jurisdictional statutes of the forum in which the judgment was rendered as well as due process considerations’ " ( Ho v. McCarthy , 90 AD3d at 711, quoting Fiore v. Oakwood Plaza Shopping Ctr. , 78 NY2d 572, 577 [1991], cert denied 506 US 823 [1992] ).
Defendant contends that Plaintiff has failed to meet his burden regarding demonstrating that the South Carolina court had personal jurisdiction over Defendant. In support of his motion, Plaintiff has submitted a copy of the original trial court decision, an appellate court decision, and the final judgment in the case. Notably, while the initial ruling was based on a default, beginning at the original damages hearing, Defendant appeared through counsel.
Defendant was aware of the alleged issue regarding service well in advance of the proceedings and his own submission to this Court shows he relied on his belief that he had not been properly served. It was specifically because of this belief, that he had not been served and because of his knowledge that such service was necessary for jurisdiction, that he did not further pursue information regarding the cause of action against him after he gained actual notice of the proceeding from his former law partner. Inexplicably, Defendant now claims he was unable to assert this argument in the South Carolina court because he did not have enough time from when he became aware of the default until the time of the damages hearing. He asks this Court to accept that both he, an attorney by training, and his counsel could not file a motion to set aside the default in a matter of days or hours, respectively, despite the fact that this is an issue that some courts have gone so far as to refer to as one that "any first-year law student knows." The record belies this suggestion as the South Carolina court explicitly noted that Defendant's counsel stated he was ready to proceed and did not seek a continuance.
Just as in New York (see CPLR 5015 [a] [4] ), South Carolina permits a post-trial motion to set aside a default based on lack of personal jurisdiction (see SCRCP 60 [b] [5]; Bakala v. Bakala , 352 SC 612, 629 [2003] ). In both South Carolina and New York, "[a] defendant may waive any complaints he [or she] may have regarding personal jurisdiction by failing to object to the lack of personal jurisdiction and by appearing to defend his [or her] case" ( Ex parte Cannon , 385 SC 643, 658 [South Carolina Ct App 2009] [citation omitted]; cf. Matter of Nicola v. Bd. of Assessors of Town of N. Elba , 46 AD3d 1161, 1162 [3d Dept 2007] ). Here, Defendant appeared through counsel at two trial hearings and an appellate proceeding and failed to assert any due process or jurisdiction issue. Those appearances constituted a waiver of his objections regarding personal jurisdiction.
Defendant admits to harming Plaintiff. His admissions clearly show he fell below the code of conduct to which attorneys are held. Plaintiff entered into a difficult plan to pay off his debts that was not honored by at least one of his creditors, and he was subsequently harmed. More than thirteen years after hiring Defendant to seek redress for this harm, Plaintiff has received no relief as Defendant has offered only his apologies while forcing Plaintiff to repeatedly seek judicial relief against his own former attorney to cover for harm. Defendant does not contest that not a single payment has been made towards the $111,147.99 judgment made against him. Cases must have conclusions and parties are entitled to see their judgments paid.
Plaintiff's papers provide two different numbers for the interest rate (8.5% in the Complaint, compared to 7.5% in the Attorney Affirmation). The correct statutory interest rate is 7.5% (see In re Interest Rate on Money Decrees & Judgments , 415 SC 53, 781 [2016] ), compounded annually (see SC Code § 34-31-20 [B] ). "The rate of interest applicable to judgments or contracts is a state function. It is apparent how deleterious it would be to the market place if a judgment creditor could file a judgment in a sister state and demand that the debtor pay a greater rate of interest than originally called for. On the other hand, it would be unacceptable for a judgment creditor to be deprived of his interest if the rate of the sister state is lower" (Hospital Serv. Plan of N.J. (N.J. Blue Cross Plan) v. Warehouse Prod. & Sales Empls. Union , 102 Misc 2d 872, 873—874 [Sup Ct, Queens County 1980, Rodell, J.], affd 76 AD2d 882 [1980] ). Therefore, this Court finds that Plaintiff is entitled as a matter of law to a judgment of $111,147.99, plus interest at 7.5%, compounding annually from the date of the South Carolina Judgment.
According, it is
ORDERED, Plaintiff's Motion for Summary Judgment is granted .
This shall constitute the Decision, Order and Judgment of the court. This Decision, Order and Judgment is being returned to the attorney for Plaintiff. All original supporting documentation is being filed with the Greene County Clerk's Office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provision of that rule relating to filing, entry and notice of entry.
SO ORDERED AND ADJUDGED
ENTER.
Papers Considered:
Plaintiff's Notice of Motion for Summary Judgment dated September 25, 2019; Attorney Affirmation dated September 25, 2019; Annexed Exhibits 1-3.
Defendant's Attorney Affirmation, dated October 24, 2019, in Opposition to the Motion; Defendant's Affidavit sworn October 23, 2019.
Plaintiff's Attorney Affirmation dated November 5, 2019, in Further Support of the Motion for Summary Judgment.