Opinion
38609/03.
Decided September 26, 2005.
By order to show cause filed on March 1, 2005, defendant Roberto J. Gualtieri, Sr. (hereinafter RJG) moves pursuant to CPLR § 5015 to vacate a judgment entered against him on default. Plaintiff opposes the motion.
Plaintiff is a foreign corporation doing business in the State of New York. On October 15, 2003, plaintiff commenced this action by filing a summons and complaint. The complaint alleges three causes of action, namely, breach of a lease agreement for equipment, goods and wares; specific performance of defendants' guarantee of the lease agreement and an account stated. On November 14, 2003, plaintiff filed an affidavit of service alleging substitute service of the summon and complaint upon RJG. On December 30, 2003, defendant EBH Martinez Gallery, Inc. (hereinafter EBH) filed a verified answer, alleging seven affirmative defenses and pleading a cross claim against Greenpoint Manufacturing and Design Center, LDC. The answer was verified by EBH's attorney, Martin Vasquez. Defendant Erica Lynn Martinez and RJG did not appear on the underlying action.
By notice of motion filed on February 26, 2004, plaintiff moved for summary judgment for the relief requested in its complaint. Plaintiff served Martin Vasquez, EBH's counsel with the motion papers. Plaintiff did not serve RJG with the motion papers. Defendant RJG neither appeared nor answered the motion. Plaintiff's motion was granted on default based on RJG's failure to either appear or to answer the motion. On September 24, 2004, plaintiff filed a settled order with notice of entry. The affidavit of service alleged service on counsel for the defendant, Martin S. Vasquez.
By order to show cause filed March 1, 2005, defendant RJG moves to vacate the order granting summary judgement to the plaintiff. Included in the annexed motion papers was his affidavit alleging excusable default based on his failure to receive either the summons and complaint or the plaintiff's motion papers on the summary judgement application. Plaintiff's affidavit of service of the summons and complaint alleges that on November 7, 2003, the papers were delivered to Hugo Martinez, a co-worker of RPG, at 96 West Street, Apartment 1D, Brooklyn, New York, RPG's place of employment. It further alleges a mailing of the same documents by first class mail in an envelope marked personal and confidential to the same address on November 10, 2003. RPG also alleged that he never worked at the place designated as his place of employment in plaintiff's affidavit of service of the summons and complaint.
Upon examination of the county clerk's file, the relevant motion papers and pertinent affidavits of service, the court finds as follows. Martin S. Vasquez, as counsel to EBH, appeared and answered the underlying complaint only on behalf of defendant EBH. RJG did not appear on the underlying action. Thereafter, plaintiff moved for summary judgment against all named defendants but only served notice of the motion on Martin S. Vasquez, counsel only to EBH at the time.
Martin Vasquez's first appearance as counsel to RJG occurred on March 1, 2005 with the filing of the instant order to show cause. CPLR § 2103 authorizes the service of papers on any party in a pending action by mailing of such papers to the party's attorney at the address designated by the attorney for such purpose ( Unigard Ins.Group v. State, 286 AD2d 58-60 [2nd Dept. 2001]). CPLR § 2103(b) provides, in pertinent part, that where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Here, Martin Vasquez did not appear as RJG's counsel until March 1, 2005. Thus, service of the summons and complaint and the motion for summary judgment on Martin Vasquez, both of which occured prior to March 1, 2005, did not constitute service upon RJG. Plaintiff, therefore, moved for summary judgment against all defendants, including RPG, without serving notice of the motion upon RPG.
CPLR § 5015(a)(1) and (4) provides that the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry, or . . .
4. lack of jurisdiction to render the judgment or order.
Pursuant to CPLR § 5015, a moving party seeking to vacate a default judgment must demonstrate both an excusable default and a meritorious defense ( Kaufman Satran LLP v. Sidbern Estates, Inc., 4 AD3d 454 [2nd Dept. 2004]). It is within the sound discretion of the Court to determine what constitutes a reasonable excuse as well as a meritorious defense ( Beizer v. Funk, 5 AD3d 619 [2nd Dept 2004]).
However, 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 ( Steele v. Hempstead Pub Taxi, 305 AD2d 401, [2nd Dept. 2003]; see also European American Bank Trust Co. v. Serota, 242 AD2d 363 [2nd Dept. 1997]). In the case at bar, RPG claims improper substitute service of the underlying summons and complaint and no service of the motion for summary judgment. In view of the defendant's allegation in his affidavit that he had not been properly served with the summons and complaint, an issue of fact is raised requiring a traverse hearing (European American Bank Trust Co. v. Serota, 242 AD2d supra at 365 [2nd Dept. 1997]; see also Greenpoint Savings Bank v. Taylor, 92 AD2d 910 [2nd Dept. 1983]). If service had not been duly effected, the court would have no jurisdiction over the defendant and the default judgments would be nullities. Once a movant demonstrates the lack of jurisdiction, a default judgment must be unconditionally vacated ( Citibank, NA v. Keller, 133 AD2d 63 [2nd Dept 1987]).
It would be error to determine the excusable nature of defendant's default, without first determining the jurisdictional question under CPLR § 5015(a)(4) ( Anello v. Barry, 149 AD2d 640 [2nd Dept 1989]). Consequently, the court will not address at this time whether defendant's affidavit demonstrated both good cause and a meritorious defense. It is noted, however, that the use of a summary judgment motion pursuant to CPLR § 3212, requires that issue be joined. This court has determined that defendant RJG did not answer the summons and complaint. Thus the procedural device of seeking an accelerated judgment pursuant to CPLR § 3212 should not have been available against RPG. The parties are directed to appear in Part 52 on November 15, 2005 at 10:00 am for a traverse hearing to determine this court's personal jurisdiction over defendant RPG.
The foregoing constitutes the decision and order of the court.