Opinion
2018-1246 K C
03-13-2020
U.S. EQUITIES CORP., Appellant, v. Reine M. LAMARRE, Respondent.
Linda Strumpf, Esq., for appellant. Reine M. Lamarre, respondent pro se (no brief filed).
Linda Strumpf, Esq., for appellant.
Reine M. Lamarre, respondent pro se (no brief filed).
PRESENT: MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ.
ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment entered January 22, 2007 and, upon such vacatur, to dismiss the complaint is denied.
In this action to recover for breach of a credit card agreement, a judgment was entered on January 22, 2007 awarding plaintiff the principal sum of $2,102.31 upon defendant's failure to appear or answer the complaint.
In January 2017, defendant moved to vacate the default judgment, alleging that she had not been served (see CPLR 5015 [a] [4] ). In opposition to the motion, plaintiff stated that defendant had knowledge of the judgment, as a payment had been made when her wages had first been garnished on November 12, 2012 and that, in 2016, eight additional payments had been made pursuant to a wage garnishment. Plaintiff argued that defendant had waived her jurisdictional defense, since she had waited approximately four years after her wages had first been garnished before moving to vacate the default judgment. By order entered January 30, 2017, the Civil Court granted defendant's motion to vacate the default judgment and dismissed the complaint.
It is well settled that a defect in personal jurisdiction may be waived (see CPLR 3211 [e] ; Textile Tech. Exch. v. Davis , 81 NY2d 56, 58-59 [1993] ; Matter of Parkside Ltd. Liab. Co. , 294 AD2d 582, 583-584 [2002] ), and it has been held that a waiver may occur where payments are made pursuant to a wage garnishment for a substantial period of time (see Cadlerock Joint Venture, L.P. v. Kierstedt , 119 AD3d 627 [2014] ; Calderock Joint Ventures, L.P. v. Mitiku , 45 AD3d 452 [2007] [the defendant waived the defense of personal jurisdiction by making payments on a deficiency judgment under a wage garnishment order for over one year before moving to vacate the judgment]; Chase Bank USA, N.A. v Schwartz , 61 Misc 3d 137[A], 2018 NY Slip O.p 51557[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ). Here, defendant waived her defense of lack of personal jurisdiction by virtue of payments that had been made through the garnishment of her wages, beginning in November 2012 and eight times in 2016, before she moved to vacate the default judgment.
Accordingly, the order is reversed and defendant's motion to vacate the default judgment entered January 22, 2007 and, upon such vacatur, to dismiss the complaint is denied.
WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.