Opinion
24225/2007.
March 2, 2011.
This is an action for damages for personal injuries sustained by the plaintiff in an automobile accident which occurred on October 2, 2004, on Woodhaven Boulevard at or near the intersection with 73rd Avenue. The plaintiff, CHRISTOPHER MACCHIO, was the operator of a vehicle that was stopped at a red light on Woodhaven Boulevard when his vehicle was hit in the rear by the vehicle being operated by the defendant, HAROL GUZMAN. Although the defendant fled the scene of the accident, the plaintiff was able to take down the his license plate number. Through a license plate search with the Department of Motor Vehicles (DMV), it was determined that the vehicle was registered to defendant Harol A. Guzman, whose address was listed with the DMV as 56-10 94th Street Apartment 5J, Elmhurst New York.
A summons and complaint was filed on September 28, 2007. The affidavit of service states that the defendant was served on November 6, 2007 by personal service at 56-10 94th Street Apartment 5J, Elmhurst, New York, by delivering a copy of the summons and complaint to "PETER PIZAM/COUSIN," a person of suitable age and discretion at the defendant's address, and by mailing a copy of the summons and complaint to Harol Guzman at the same address. The affidavit of service was filed with the Court on November 9, 2007. The defendant did not serve or file an answer.
By notice of motion dated November 21, 2008, plaintiff moved for a default judgment on the ground that the defendant's time to appear in the action had expired. The motion was mailed to the defendant at the same address where he was served with the summons and complaint. The defendant did not oppose the plaintiff's motion for a default judgment.
By decision and order dated January 20, 2009, this Court granted plaintiff's motion for a default judgment and set the matter down for an inquest and assessment of damages.
After an inquest which took place on October 28, 2009, this Court awarded the plaintiff a judgment in the amount of $100,000.00 as damages for the injuries he sustained in the motor vehicle accident. A judgment, which included costs, disbursements, and interest, was entered by the Clerk of Court on February 18, 2010 in the total amount of $103,891.64.
By order to show cause, dated August 30, 2010, defendant moved for an order vacating the default judgment against Harol Guzman and dismissing the plaintiff's complaint on the ground that defendant was not properly served with the summons and complaint. The defendant contended that the court lacked personal jurisdiction of the defendant as service of the summons and complaint was made to the wrong address. Defendant's counsel, Loretta A. Restivo, Esq., contended that the defendant's license plates were voluntarily surrendered on August 21, 2006 and the defendant moved back to Colombia one year prior to the alleged service. In addition, defendant contended that the motion for a default judgment was untimely pursuant to CPLR 3215 as it was brought more than one year after the default.
Although the plaintiff's attorney was served with the order to show cause to vacate the default judgment as directed by the Court, the plaintiff's attorney failed to oppose the motion and the motion was submitted for decision without opposition.
By decision and order dated October 12, 2010, this Court granted the defendant's motion to vacate the default judgment without opposition, on the ground that the Court had not obtained personal jurisdiction over the defendant. The Court ordered that the complaint be dismissed.
The plaintiff now moves by Order to Show Cause dated November 9, 2010, for an order vacating this Court's decision dated October 12, 2010, which dismissed the plaintiff's complaint and permitting the plaintiff to interpose opposition papers on the ground of excusable default.
Upon review and consideration of plaintiff's order to show cause, the defendant's opposition and the plaintiff's reply thereto, this court finds as follows:
To vacate the order dated October 12, 2010, entered upon the plaintiff's default, the plaintiff is required to show both a reasonable excuse for the default and the existence of a meritorious cause of action (see CPLR 5015[a][1]; Andelman v Berardi, 73 AD3d 956 [2d Dept. 2010]; Joseph v GMAC Leasing Corp. , 44 AD3d 905 [2d Dept. 2007]; St. Rose v McMorrow , 43 AD3d 1146[2d Dept. 2007]). The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005; Rockland Tr. Mix, Inc. v Rockland Enters., Inc. , 28 AD3d 630 ,[2d Dept. 2006]; Henry v Kuveke , 9 AD3d 476 [2d Dept. 2004]; Navarro v Trenkman Estate, Inc., 279 AD2d 257 [2d Dept. 2001).
Here, the plaintiff demonstrated that his failure to oppose defendant's motion to vacate the default judgment was neither willful nor part of a pattern of dilatory behavior, but the result of inadvertent law office failure (see Caso v Manmall, Inc., 68 AD3d 470 [1st Dept. 2009]; Travelers Ins. Co. v Abelow , 14 AD3d 395 [1st Dept. 2005]; Harwood v Chaliha, 291 AD2d 234 [1st Dept. 2002]). Plaintiff demonstrated a reasonable excuse by showing that his default resulted from law office failure to calendar and timely oppose defendant's discovery motion (see Maldonado v. Algil Holding Co., LLC , 68 AD3d 531 [1st Dept. 239]; Simpson v Tommy Hilfiger U.S.A., Inc. , 48 AD3d 389 [2d Dept. 2008]). The defendant's excuse of law office failure was reasonable under the circumstances of this case (see CPLR 2005; Andelman v Berardi , 73 AD3d 956 [2d Dept. 2010]; Montefiore Med. Ctr. v Hartford Acc. Indem. Co. , 37 AD3d 673 [2d Dept. 2007]; Liotti v Peace , 15 AD3d 452 [2d Dept. 2005]).
Furthermore, plaintiff's motion papers established a meritorious claim (see Palermo v Lord Taylor, 287 AD2d 258 [1st Dept. 2001]). Defendant's counsel contends, based upon the affidavit of Rosa Pinzon, dated June 16, 2010, that she (Pinzon) lived at the address where service was made on the date in question and that no one by the name of Peter Pizam lived there. She also states that Harol Guzman did not live at that address on the date in question because he moved back to Colombia in mid-2005. The defendant submits a DMV printout showing that the plates to the vehicle were surrendered in August 2006. As a result, defendant's counsel contends that service upon defendant at the address listed in the affidavit of service was invalid as defendant did not live at that address at the time service was made. Thus, counsel contends, personal service was never acquired over the defendant.
Here, there is no dispute that Guzman left the scene of the accident prior to the arrival of the police at the scene. The New York State DMV lists Guzman's address to be the address where service was made. Further, although the defendant fled the scene of the accident he filed his own MV-104 report dated November 12, 2004, in which he lists his address as 56-10 94th Street, Elmhurst, New York. In his accident report, Guzman states that plaintiff made a sudden stop and that he then hit plaintiff's vehicle in the rear.
Pursuant to Vehicle and Traffic Law § 505(5):
"5. Change of address. It shall be the duty of every licensee to notify the commissioner in writing of any change of residence of such licensee within ten days after such change occurs and to make a notation of such change of residence on such license in the place provided by the commissioner."
The courts have held in this regard that "defendant's failure to notify the Department of Motor Vehicles of the change of address as required by Vehicle and Traffic Law § 505(5), estops [him] from contesting the service of process that was made at the address contained in [his] license exhibited at the scene of the accident" ( Williams v Yasky, 199 AD2d 18 [1st Dept. 1993]; also see Stillman v. City of New York , 39 AD3d 301 [1st Dept. 2007][(Defendant)failed to notify the Department of Motor Vehicles of his change of address within 10 days of the change as required by Vehicle and Traffic Law § 505 (5). Thus, (defendant) is estopped from challenging the propriety of service made at the former address]).
In Kandov v Gondal , 11 AD3d 516 [1st Dept. 2004], the Court held that the defendant was estopped from raising a claim of defective service because he failed to apprise the Department of Motor vehicles of his current address. In Kandov, supra., the excuse proffered by the defendant for his default was that on the date of service he no longer resided at the address where service was made, which was the same address that was listed with the DMV. Also see Toure v Harrison , 6 AD3d 270 [2d Dept. 2004] wherein the court also found defendant was estopped from contesting service of process made at the address listed with the DMV even where defendant did not live at the address at the time service was made. In Toure, supra., the court stated, "the only excuse defendant proffered for the delay in submitting an answer was that he was not aware of the service of the summons and complaint, because, at the time of the service, he was not living at the address where service was effectuated. However, since this is the address provided by defendant for his driver's license and the police accident report, he is estopped from contesting the validity of service made at that address."
Accordingly, this court finds that jurisdiction over defendant was obtained by the personal service that was made at the address listed with the DMV pursuant to CPLR 308(2). As the defendant was served at the address listed both with the DMV and on the MV104 accident report which he personally filed, the defendant is estopped from contesting the validity of service made upon him at that address (see Choudhry v. Edward, 300 AD2d 529 [2d Dept. 2002]; Traore v. Nelson, 277 AD2d 443 [2d Dept. 2000]; Benjamin v Avis Rent-A-Car Sys., 208 AD2d 449 [1st Dept. 1994]; Deas v Brunke, 199 AD2d 43 [1st Dept. 1993]; Sherrill v Pettiford, 172 AD2d 512 [2d Dept. 1991]).
In addition this court finds that the plaintiff's motion for the default judgment which was served November 21, 2008, was timely pursuant to CPLR 3215.
Accordingly, for the reasons stated above, it is hereby
ORDERED, that this court's decision dated October 12, 2010 is vacated and it is further
ORDERED that the plaintiff's complaint is reinstated and the Judgement entered by the clerk of court on February 18, 2010 upon the inquest of October 28, 2009, is reinstated and is entitled to full force and effect.