Cadlerock Joint Venture, L.P. v. Kierstedt

• Decision Date: 09 July 2014
• Citation: 2014 N.Y. Slip Op. 05147,990 N.Y.S.2d 522,119 A.D.3d 627
• Parties: CADLEROCK JOINT VENTURE, L.P., appellant, v. Marcus KIERSTEDT, respondent.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 627

990 N.Y.S.2d 522

2014 N.Y. Slip Op. 05147

CADLEROCK JOINT VENTURE, L.P., appellant,

v.Marcus KIERSTEDT, respondent.

Supreme Court, Appellate Division, Second Department, New York.

July 9, 2014.

Vlock & Associates, P. C., New York, N.Y. (Steven P. Giordano of counsel), for appellant.

Matthew S. Porges, Brooklyn, N.Y., for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.

In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), entered November 13, 2012, which, after a hearing to determine the validity of service of process, granted the defendant's motion to vacate a judgment of the same court entered May 5, 2010, against him in the sum of $162,447.02, upon his default in appearing or answering, and thereupon directed the dismissal of the complaint.

ORDERED that the order is affirmed, with costs.

On September 8, 2006, the defendant executed a promissory note in the principal sum of $153,800 and a second mortgage on certain property located in Brooklyn. Thereafter, the mortgage and note were assigned to the plaintiff Cadlerock Joint Venture, L.P. (hereinafter Cadlerock). In February 2009, Cadlerock and the defendant entered into a written loan modification agreement.

On January 28, 2010, Cadlerock commenced the instant action to recover $160,490.15 on the promissory note. In March 2010, the defendant purportedly was served with process pursuant to the method described in CPLR 308(4), commonly known as “affix-and-mail” service. On May 5, 2010, a judgment was entered against the defendant in the sum of $162,447.02, upon his default in appearing or answering. Cadlerock sought to enforce the judgment by means of a wage garnishment, beginning on October 1, 2010.

By order to show cause dated October 19, 2010, the defendant, appearing pro se, moved to vacate the default judgment, claiming he was not properly served with process and did not receive notice of the commencement of the action prior to learning of the entry of the default judgment. In opposition, Cadlerock contended that the defendant waived the defense of lack of personal jurisdiction by attempting to settle the action with respect to his obligations under the note for the period of time between the date when he learned of the entry of the default judgment and the date when he moved to vacate the default judgment.

After a hearing to determine the validity of service of process, the Supreme Court found that the “process server was not credible in his testimony of due diligence since he failed to put his attempts [at service] into his log book.” The Supreme Court noted that the process server was unable even to describe the sex of a neighbor of the defendant who allegedly verified that the defendant lived at 173 Pulaski Street in Brooklyn, and did not enter a description of that neighbor in his notes, although there were spaces on his work ticket and the blank affidavit of service form where a description could have been entered. The court further found that the defendant did not waive his defense of lack of personal jurisdiction by making voluntary installment payments on the loan, and attempting to settle the dispute with the plaintiff in connection with the loan. The Supreme Court vacated the default judgment, and directed the dismissal of the complaint for lack of personal jurisdiction ( see Cadlerock Joint Venture, L.P. v. Kierstedt, 37 Misc.3d 1212[A], 2012 WL 5233500).

A defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss ( see Taveras v. City of New York, 108 A.D.3d 614, 617, 969 N.Y.S.2d 481;Frederic v. Israel, 104 A.D.3d 909, 910, 960 N.Y.S.2d 918). A defendant may also waive lack of personal jurisdiction by entering into a stipulation of settlement of the action ( see Matter of Parkside Ltd. Liab. Co., 294 A.D.2d 582, 583–584, 742 N.Y.S.2d 580;Lomando v. Duncan, 257 A.D.2d 649, 684 N.Y.S.2d 569). Additionally, a...