Portfolio Recovery Assoc., LLC v Cruz

2024 NY Slip Op 32653(U)

July 29, 2024

Civil Court of the City of New York, Richmond County

Docket Number: Index No. CV-005878-13/RI

Judge: Matthew P. Blum

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
CIVIL COURT OF THE CITY OF NEW YORK

COLTNTY OF RICHMOND

-------------x IndexNo.CV-005878-f3iRI

PORTFOLIO RECOVERY ASSOCIATES. LLC

Plaintiff DECISION AND ORDER

-agalnst HON. MATTHEW P. BLUM

JUDGE CIVIL COURT

RICHARD CRUZ

Defendant

---------x

Papers Numbered

Defendant'sOrdertoShowCausetoVacatetheJudgment................................ I

Plaintiffs Opposition to Defendant's Order to Show Cause, Exhibits

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Upon the foregoing cited papers, the Decision/Order on the motions is as follows:

I: PROCEDURAL HISTORY

On or about November 22, 2013, Portfolio Recovery Associates, LLC (hereinafter,

Plaintiff) filed a summons and complaint with the Court for a breach of contract claim against

Richard Cruz (hereinafter, Defendant) in the amount of $4,425.28. On June 6, 2014, after no

answer was interposed by the Defendant, a default judgment was entered against Defendant for

$4,650.28.

Subsequent to the entry ofjudgment, the Defendant's wages began being gamished. As a

result, on May 15, 2024, Defendant filed an order to Show cause to vacate the default judgment.

In this Order to Show Cause, Defendant makes a jurisdictional argument and claims that he was

never served with the summons and complaint. Defendant further argues pursuant to cpLR $501 5,

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that he has a reasonable excuse for default because of this lack of service and that he has a

meritorious defense because he believes he has paid all his debt at the time ofa refinancing.

on or about May 22,2024, Plaintiff opposes Defendant's order to Show cause. plaintiff

first opposes Defendant's jurisdictional argument and argues that the affidavit of service from the

process server gives rise to the presumption of proper service. Furthermore, Plaintiff argues that

Defendant waived his right to argue lack ofpersonal jurisdiction by making payments pursuant to

a judgment or wage gamishment for a substantial period of time, namely, since A pil 17,2024. ln

addition, Plaintiff argues that Defendant's argument under cpLR $5015 should be denied because

he fails to demonstrate a reasonable excuse for default and a meritorious defense.

On June 12,2024, the matter appeared before Your Honor and was taken on submission.

The court hereby acknowledges and commends the Richmond county civil court summer 2024

Intem Class: Athira Anil, Anais Bundy, Richa Chandra, Athena Lam, Junlin Shi, and Susan

Yegoryan for their dedicated efforts in their assistance in preparing this decision.

II: DISCUSSION

A: Personal Jurisdiction.

As detailed above, Defendant argues that this Court lacks jurisdiction because he was never

served with the summons and complaint. Plaintiff opposes said argument by relying on the

affidavit ofservice ofprocess server, Anthony Yannucci.

When a defendant seeks to vacate a default judgment by raising ajurisdictional objection,

the court is required to resolve the jurisdictional question before determining whether to vacate the

default judgment. Canelas v. Flores, 112 A.D.3d B7l (2d. Dep,t 2013); Emisrant Mtge.Co.v.

Westervelt, 105 A.D.3d 896,897 (2d.Dep't2013); Roberts v. Anka,43 A.D.3d752,753 (2d,.Dep,t

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2007). The burden ofproving that personal jurisdiction was acquired over a defendant rests with

a plaintiff. Absent swom specific factual allegations to the contrary to refute it, a process server's

aflidavit of service constitutes rebuttable prima facie evidence of proper service. See: Federal

N e. Assn. v. astoldi 187 A.D.3d 988, 989 (2d. Dep't 2020); Nationsrar Mtqe.. LLC v.

Einhom, 185 A.D.3d 945, 946 (2d. Dep't 2020); SBC Bank USA N.A. v. Assouline t1t A.D.3d

603,604 (2d. Dep't 2019). An evidentiary traverse hearing to determine the validity ofservice of

process is required when a defendant asserts specific and detailed facts to rebut the statements in

the process server's affidavit. onewest Bank FSB v. Perl4 200 A.D.3d 1052, 1055 (2d. Dep,t

2021); HSBC Bank United States. N.A. v. Rahmanan, 194 A.D.3d 792 (2d. Dep't 2021); Wells

Fargo Bank. N.A. v. Enitan,200 A.D.3d 736,738 (2d.Dep,t202t).

As Defendant has raised ajurisdictional defect argument, the Court must resolve this issue

before conducting any aaalysis as to whether Defendant had a reasonable excuse for default and a

meritorious defense under CPLR $5015. Accordingly, in support of its opposition to Defendant,s

jurisdictional argument, Plaintiff relies on the aflidavit of service from process server, Anthony

Yannucci, from December3,2013. This affidavit of service was filed with the court on December

12,2013. However, this document is not included in Plaintiffs papers and Plaintiffstates in their

opposition that they were unable to obtain the affidavit of service to include with their exhibits

because ofthe short retum date, May 22,2024 to June 12,2024. Nevertheless, plaintiff made no

petition seeking leave from the Court for any extension of time or an adjoumment to obtain said

document. Plaintiff also did not request to file supplemental papers. While not explicitly stated,

Plaintiff is asking this Court to go into the Court file and take judicial notice of the affidavit of

service previously filed.

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"The burden is on the Plaintiffto prove compliance.... The court will not search the record

in order to review the affrdavit of service." Citibank (South Dakota). N.A. v. Cigna 2021 NY Slip

Op 50093(U),3 (Civ. Ct. Kings County 2021) quoting Wells F o N.A. v. 2020 NY

Slip Op 30848 (U), 18 (Civ. Ct. Kings County 2020). The Court has been wamed not to take judicial

notice of unauthenticated or unreliable documents in the court file. Caffrey v. North Arrow Abstract

Settlement Servs. Inc. 160 A.D.3d 121,127 (2d. Dep't 2018). Likewise, the Court is cautioned

only to take judicial notice of "facts which are capable of immediate and accurate determination by

resort to easily accessible sources ofindisputable accuracy". Hamilton v. M 23 N.Y.3d 592,603

(2014) quoting Peoole v. Jones,73 N.Y.2d 427,431 (1989).

Plaintiff is correct in stating that an affidavit of service is prima facie evidence of proper

service. However, as Plaintiff has failed to attach the affrdavit of service to the affirmation, the

Coun is unable to give any benefit of the presumption of proper service. Unlike many cases where

there is no affldavit of service ever filed or filed on a different matter, here, an affidavit ofservice

was filed, just not attached to the Plaintiff's motion. Although the Court is physically able to go

through the file and incorporate a document by reference as an exhibit to a motion, the Court has

no obligation to search the record for an exhibit or evidence. In fact, doing so would lead to

dangerous territory where a court could ostensibly fill in the gap and insert itselfinto a proceeding

where one party or another falls short in its production of evidence, thus, interjecting itselfinto a

proceeding and denying due process or shifting a burden. Various documents find their way into

a court file. This does not mean all documents are reliable or authentic. As the affidavit of service

is not a document widely considered to have undisputed reliability or accuracy, the Court will not take

judicial notice of it. If affidavits of service were held in this regard, traverse hearings would not exist.

While Defendant does not specifically state any detailed facts in his Order to Show Cause, the

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burden remains on the Plaintiff to demonstrate proper service. In the absence ofan affidavit of

service, the only way to determine that issue is to hold a traverse hearing.

Plaintiff's argument regarding any waiver of a jurisdictional defect is inaccurate. In

addition to the approximate one month (Apil 2024 to May 2024) of wage gamishment being

dramatically short of any period of time the Courts have determined to be sufficient to fit the

substantial period of time required for waiver, it has been determined that waiver does not apply

where a defendant's only participation in the action is the submission of a motion to vacate a

default judgment for lack of personal jurisdiction. HSBC Bank usA. N.A. v. whitelock, 214

A.D.3d 855, 856-857 (2d. Dep't 2023) quoting Cadlerock Joint Venture- L. v. Kiersted 119

A.D.3d' 627, 628 (2d. Dep't 2014). Thus, as Defendant made no appearance in this matter other

than an Order to Show Cause to vacate the defaultjudgment for lack ofjurisdiction with an answer

arguing lack ofjurisdiction, Plaintiff's waiver argument does not apply.

Accordingly, Defendant's Orderto Show Cause to vacate the defaultjudgment is to be held

in abeyance pending the determination of a traverse hearing.

B: CPLR 85015.

As the Court must first resolve the issue ofjurisdiction, the Court will not conduct any

analysis as to Defendant's proposed reasonable excuse for default or meritorious defense until

the jurisdictional issue is resolved.

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III: CONCLUSION

Based on the foregoing,

ORDERED, that all judgments, liens, wage gamishments, income executions, and

restraining notices with respect to the Defendant be stayed immediately.

ORDERED, that Defendant's Order to Show Cause to vacate the default judgment be held

in abeyance pending the determination ofa traverse hearing, and it is further

ORDERED, that the parties are to appear and produce evidence for a traverse hearing on

Seotem 4.2024 at I 1:30 AM in Part 62. Should the parties have any scheduling or witness

issues, the parties must contact my court Attomey, Frank Prospero, Esq., at 71g-675-g43g or

FProsper@nycourts.gov in advance of the hearing date. Barring an emergency, adjoumment

requests will not be honored without advance notice to the Court.

This foregoing constitutes the Decision and Order ofthe Court.

Dated: Staten Island, New York

July 29,2024

ASN by FP on 07/29/2024

TTHEWP. BLUM, J.C.C.

*$m,b?'H'"

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