Opinion
CV-27185-18/KI
09-11-2020
Sanam SHEIKH, Plaintiff, v. Hristos BOHTIS, Defendant.
Mari Milorava-Kelman, Esq., Cherney & Podolsky, PLLC, 1723 East 12th Street, 4th Floor, Brooklyn, NY 11229, (718) 449-5100, Counsel for Plaintiff Florelee Wan, Esq., Wong Fleming, P.C., 300 East 42nd Street, 14th Floor, New York, NY 10017, (212) 643-9668, Counsel for Defendant
Mari Milorava-Kelman, Esq., Cherney & Podolsky, PLLC, 1723 East 12th Street, 4th Floor, Brooklyn, NY 11229, (718) 449-5100, Counsel for Plaintiff
Florelee Wan, Esq., Wong Fleming, P.C., 300 East 42nd Street, 14th Floor, New York, NY 10017, (212) 643-9668, Counsel for Defendant
Sandra E. Roper, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
ORDER TO SHOW CAUSE 1
AFFIRMATION IN SUPPORT & EXH. ANNEXED 2-3
AFFIRMATION IN OPPOSITION & EXH. ANNEXED 4-5
REPLY 6
INTRODUCTION
This Honorable Court Decides and Orders after oral argument, Defendant's Order to Show Cause to Vacate Default Judgment pursuant to CPLR 5015 (a) (1) for the reasoning as set forth below is hereby DENIED .
PROCEDURAL AND FACTUAL HISTORY
Small Claims Action commenced by Plaintiff and filed October 7, 2016, against Defendant for property damages caused in a Motor Vehicle Accident [hereinafter MVA] on August 27, 2016. The Police Accident Report indicates Defendant's Driver's License contained the address, "172 Windsor Place, Brooklyn, NY". Whereas it also contained the motor vehicle's registration address of "585 18 Street, Apt A, Brooklyn, NY," bearing the name of Defendant. Upon filing of the action, the address used for Defendant was his driver's license for service by first class mail by Small Claims Clerk for Index Number SCK-16388-2016. Matter was adjourned to July 6, 2017 for trial. Defendant failed to appear, inquest was held, and Default Judgment was granted in favor of Plaintiff on July 6, 2017.
The Court Denied Defendant's Request for an Order to Show Cause to Vacate Default Judgment on February 22, 2018, stating:
"The Court declines to sign because there is no explanation as to why Defendant's old address found its way on a Police Report (there is also no Police Report attached). If Defendant did not inform the police of his new address or if Defendant provided an old address to claimant, he should not hang the opportunity of vacating a judgment when such actions may have been calculated to frustrate Claimant's action. How long has it been since Defendant moved and why wasn't the address timely changed? When, if, was the correct address reflected in the Driver's License?"
Thereafter, on June 27, 2018, Defendant's subsequent request for another Order to Show Cause was signed by the Court for argument to be held on July 11, 2018. However, on that date, court granted leave to refile for Defendant to serve Plaintiff and to obtain a Certificate of Mailing. By Order of Court on August 8, 2018, Small Claims Court Case was transferred to Civil Court and assigned the present Index No. CV-27185-18/KI. Plaintiff served and filed Opposition to Defendant's Order to Show Cause on October 11, 2018. However, as a result of administrative clerical error, the instant Order to Show Cause request was again made and signed by the Court on January 8, 2020, for oral argument on January 28, 2020. However, oral argument was adjourned to March 24th, 2020, which was again adjourned due to Pandemic Executive Orders and UCS Administrative Orders to June 8, 2020 then ultimately to September 2, 2020, where oral argument held and Court Reserved Decision.
DISCUSSION
It is well established law that it is within the sole discretion of the court in the interest of justice to vacate default judgment based upon "excusable default" pursuant to CPLR 5015 (a) (1). At issue in this instant matter is CPLR 5015 (a) (1) :
a) On Motion. 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
To vacate a default judgment pursuant to CPLR 5015 (a) (1) movant must demonstrate a reasonable excuse for its failure to appear and file answer to complaint as well as potentiality of a meritorious defense to the cause of action (see Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co. , 67 NY2d 138, 141, 492 NE2d 116, 118, 501 NYS 2d 8, 10, 1986 NY LEXIS 17531, *7 [1986], citing Gray v. B. R. Trucking Co. , 59 NY2d 649, 650 [1983] ; Blake v. City of New York , 90 AD2d 531 [2d Dept 1982] ).
It is also well settled law, where a defendant provides her driver's license with a wrong address to the police and a plaintiff at the scene of a motor vehicle accident, defendant is estopped from jurisdictional defense premised on service upon a wrong address (see e.g. Gardner v. Tully , 227 AD2d 587, 643 NYS 2d 204, 1996 NY App Div LEXIS 6110, *3, 1996 WL 290179 [2d Dept 1996] ; Anello v. Barry, 149 AD2d 640, 540 NYS 2d 460 [2d Dept 1989] ; Lavery v. Lopez, 131 AD2d 820, 517 NYS 2d 182 [2d Dept 1987] ; Treutlein v. Gutierrez, 129 AD2d 791, 514 NYS 2d 781 [2d Dept 1987] ; Hill v. Jones, 113 AD2d 874, 493 NYS 2d 603 [2d Dept 1985] ). "This is particularly so where a defendant has failed to keep the Department of Motor Vehicles apprised of any change of address, as required by Vehicle and Traffic Law § 505 (5), with the result that the plaintiff's process server is misdirected in his or her efforts to locate and serve the defendant" ( Gardner v. Tully , 227 AD2d at 588, citing McNeil v. Tomlin, 82 AD2d 825, 439 NYS 2d 430 [2d Dept 1981] ; see also Harrington v. Dickinson, 159 AD2d 876, 553 NYS 2d 219 [3d Dept 1990] ; Kramer v. Ryder Truck Rental, 112 AD2d 194, 490 NYS 2d 863 [2d Dept 1985] ). Vehicle Traffic Law § 505 (5) is a strict liability law:
"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."
This is a statutory mandate to be adhered to and not a mere suggestion or recommendation. The motor vehicle licensee who notifies the Commissioner of Motor Vehicles on the eleventh day of any change of residence is in violation of the law and subject to enforcement. Accordingly, defaulted defendant who fails to comply will be and has been estopped by precedential law from claiming improper service premised on her former address (see Hill v. Jones , 113 AD2d 874 [2d Dept 1985] ; Kramer v. Ryder Truck Rental , 112 AD2d 194 ; see generally Lavery v. Lopez , 131 AD2d 820 [2d Dept 1987] ; Poet v. Kolenda, 142 AD2d 633, 530 NYS 2d 589 [2d Dept 1988] ). It stands to reason, where defaulted defendant has violated law, she should not benefit from her violation to the detriment of an aggrieved party. Particularly, where said violation of Vehicle Traffic Law § 505 (5) directly affects redress of alleged aggrieved party as a result of an MVA. A motor vehicle license is a statutory privilege to allow licensee to traverse the intrastate and interstate roads. In order to enjoy said privilege the Vehicle Traffic Laws must be strictly adhered to.
In this instant matter, Defendant herein violated Vehicle Traffic Law § 505 (5) for six years yet continued to enjoy the privilege afforded by the Commissioner of Motor Vehicles, a driver's license to traverse the roads. More so probative, it was as a result of the exercise of this statutory privilege that allowed Defendant to be engaged in the MVA at issue, resulting in this cause of action, resulting in default judgment that he now complains of as not having been received because sent to a former address and not his current address, which he caused by not providing his current address. It was incumbent on Defendant to comply with the law if he intended to continue to exercise this privilege conferred upon him by the Commissioner of Motor Vehicles. Defendant states that because he provided his vehicle registration with his new address to the police at the scene of the accident, which was then placed on the police accident report evidenced that he had no intent to misrepresent or deceive. However, this does not cure Defendant's violation of Vehicle Traffic Law § 505 (5) which does not require an element of intent, thus being a strict liability law. Defendant's driver's license is deemed an instrumentality of identification of the person, whereas the vehicle registration is an instrumentality of identification for the vehicle. As a practical matter, there are occasions where a New York State driver's license address and her motor vehicle registration's address for same person may be so divergent where the latter bears an out of state address. Therefore, an address on a vehicle registration is not dispositive nor necessarily relevant as to the address or domicile of Defendant. Rather, a driver's license as an instrumentality of identification of the person is relied upon not merely as a licensee to traverse interstate and intrastate roads but for other legal mandates, including national security. It is not incumbent on the aggrieved party of an MVA to choose vehicle registration address versus driver's license address on a police accident report. Particularly of note, where the defaulted judgment is granted in the jurisdiction of Small Claims Court:
Defendant's claim that he only became aware of default judgment by happenstance from "current tenant at my old address," strains credulity (affirmation in support, exhibit E).
"Small claims shall be commenced upon the payment by the claimant of a filing fee of fifteen dollars for claims in the amount of one thousand dollars or less and twenty dollars for claims in the amount of more than one thousand dollars, without the service of a summons and, except by special order of the court, without the service of any pleading other than a statement of his cause of action by the claimant or someone in his behalf to the clerk, who shall reduce the same to a concise, written form and record it in a docket kept especially for such purpose. Such procedure shall provide for the sending of notice of such claim by ordinary first class mail and certified mail with return receipt requested to the party complained against at his residence, if he resides within the city of New York, and his residence is known to the claimant, or at his office or place of regular employment within the city of New York if he does not reside therein or his residence within the city of New York is not known to the claimant. If, after the expiration of twenty-one days, such ordinary first class mailing has not been returned as undeliverable, the party complained against shall be presumed to have received notice of such claim. Such notice shall include a clear description of the procedure for filing a counterclaim, pursuant to subdivision (c) of this section"
(NY CLS NYC Civil Ct Act § 1803 [a] ). Service of Small Claims action is effectuated not by process server, but rather by Clerk of the Small Claims Court by first class mail to New York City domicile. Therefore, issue of due diligence by process server in investigating defendant's correct address is not at issue herein. Because this matter is brought within "The People's Court", procedures in law are somewhat relaxed to allow mostly pro-se aggrieved parties to have their day in court. The correct address and domicile of Defendant on his driver's license in causes of action for MVA in Small Claims Court is paramount in the dispensation of justice. Violation for six years of Vehicle Traffic Law § 505 (5) by Defendant failing to supply his new address for his driver's license yet having placed his new address on the vehicle registration is not excusable default. Finding otherwise, would reward Defendant for his six-year violation of the strict liability Vehicle Traffic Law which provided him the privilege to operate the motor vehicle. It is his exercise of this privilege which caused him to be a party in this instant MVA, in the first instance, for which he had a duty to provide his current address and domicile to the Commissioner of Motor Vehicles. the police and the Plaintiff at the scene of the MVA in which he was a party to. It is within the exclusive province and sound discretion of the court in the interest of justice whether an excuse presented for the default is reasonable to invoke its judicial discretion to grant relief from default judgment. Defendant's actions and omissions are not reasonable and therefore, not excusable default pursuant to CPLR 5015 (a) (1). Failing to have established reasonable excuse obviates any analysis into the second prong, potentiality of meritorious defense. Consequently, This Court declines to invoke its judicial discretion to vacate Defendant's default judgment.
For the foregoing reasons, All Stays are hereby Vacated and Defendant's Order to Show Cause to Vacate Default Judgment pursuant to CPLR 5015 (a) (1) is hereby DENIED .
The foregoing constitutes the opinion, decision, and order of This Honorable Court.