Citibank (South Dakota), N.A. v. Cigna
| Citation | 70 Misc.3d 1215 (A),139 N.Y.S.3d 518 (Table) |
| Decision Date | 02 February 2021 |
| Docket Number | CV-56286-10/KI |
| Parties | CITIBANK (SOUTH DAKOTA), N.A., Plaintiff, v. Vincent S CIGNA, Defendant. |
| Court | New York Civil Court |
Arslan Akhtar, Esq., Selip & Stylianou, LLP, 199 Crossways Park Drive, Woodbury, NY 11797, (516)-364-6006, Counsel for Plaintiff
Vincent S Cigna, redacted, Brooklyn, NY 11228, Defendant Pro Se
Recitation, as Required by Cplr 2219(a), of the Papers Considered in the Review of this Motion
Affirmation in Support & Exh. Annexed 3-4
Defendant Supplemental Affidavit in Support 5
Plaintiff moves This Honorable Court by Notice of Motion pursuant to CPLR 2221 (d) for an Order granting Plaintiff Leave to Reargue Decision and Order of This Court dated December 4, 2019 Granting Defendant's Order to Show Cause to Vacate Judgment and Dismissal of this action for lack of in personam jurisdiction. For the reasons set forth below, Plaintiff's Motion for Leave to Reargue is DENIED; by This Court Sua Sponte Leave to Renew pursuant to CPLR 2221 (e) is GRANTED; Decision and Order of December 4, 2019 is hereby VACATED; ORDERED, All Stays shall remain in effect on any enforcement of said Judgment by Plaintiff or its agents or assigns and any Marshal or Sheriff of the City of New York; ORDERED, Traverse Hearing.
Plaintiff, as an original creditor, alleges Defendant entered into a revolving credit card agreement whereby authorizing Defendant to make purchases, receive cash advances and was obligated to reimburse Plaintiff in addition to finance charges. Plaintiff claims that Defendant defaulted on making of payments leaving an unpaid balance of $4,295.65. Therefore, Plaintiff commenced Consumer Debt Action for said unpaid balance. Summons and complaint dated May 14, 2010 and filed June 15, 2010 containing two causes of action, breach of contract and account stated. Plaintiff filed Default Judgment with Clerk of Court on September 20, 2010 which was entered on October 26, 2010 for a total judgment of $4,515.65. Defendant filed Order to Show Cause to vacate judgment on August 8, 2019, which was marked "Calendared in Error" on August 20, 2019. Defendant filed a second Order to Show Cause on September 13, 2019 which was adjourned from October 2, 2019 to December 4, 2019 and was granted to vacating judgment and dismissing action for lack of jurisdiction. Plaintiff failed to provide duly executed and filed Affidavit of Service, rather presenting an unsigned alleged Affidavit of Service. Thereafter, pursuant to Court's Case Summary, Archive File received January 10, 2020 and March 16, 2020, to be returned respectively on February 28, 2020 and April 30, 2020.
Plaintiff filed this instant Motion for Leave to Reargue on January 8, 2020, which was adjourned from January 23, 2020 to February 27, 2020. Court granted the Motion for Leave to Reargue upon the nonappearance of Defendant on February 27, 2020 to be heard on March 13, 2020. However, March 13,2020 was a Friday and pro-se Defendant made an application for adjournment for any weekday except Friday. Pro-se Defendant had been provided pro-bono services by Volunteer Lawyers Project, which did not appear on Fridays. Application for adjournment granted, no further adjournments, to Thursday, April 16, 2020. Quite tragically, Covid-19 Pandemic was inflicted like a vengeance. Governor's Executive Orders and Unified Court System Administrative Orders closed the physical courthouses and moved matters from in-person to virtual appearances for Emergency/Essential Matters by exponentially ramping up the court system's technological capacity. As such, this oral argument was administratively adjourned from April 16, 2020, June 15, 2020, July 13, 2020, September 1, 2020, November 2, 2020, and ultimately to January 20, 2021 upon which Virtual oral argument was held.
At oral argument of underlying Defendant's Order to Show Cause to Vacate Judgment, Plaintiff's overarching argument was premised on the presumption of proper service as evidenced by the alleged unsigned Affidavit of Service presented at the oral argument allegedly upon which the court clerk's default judgment is premised. However, the proffered paper titled "Affidavit of Service" was unsigned by alleged affiant process server, not notarized, not stamped nor dated as filed by Kings County Clerk. This paper was summarily rejected out of hand. Under no circumstances could such a paper be considered by This Court for the truth of what is contained therein. This Court was indeed quite flabbergasted that Plaintiff truly deemed this paper acceptable as "Affidavit of Service". Thereupon, Plaintiff, quite vehemently argued that This Court is mandated to take judicial notice of this paper as the "Affidavit of Service" since Default Judgment was entered by the Clerk of Court on October 26, 2010. Plaintiff argued, since Clerk of Court entered Default Judgment then this paper, titled "Affidavit of Service," notwithstanding being unsigned and unsworn must be accepted by Court as evidence for presumption of proper service which must be rebutted by Defendant. Plaintiff argued it was not its responsibility in opposing Defendant's OSC to produce a copy of the alleged duly executed Affidavit of Service. Rather, it's court's mandated duty to exercise judicial notice to accept this page of paper proffered as representation of affidavit of service as being consistent with clerk's issued default judgement. This Court unequivocally rejected this proffered paper as a nullity of no value and could not be considered as a basis upon which to exercise judicial notice. So entrenched in its argument, Plaintiff did not request an adjournment to produce a duly executed Affidavit of Service. Affiant Defendant sworn under penalty of perjury stated that he was not served. Plaintiff failed to provide probative evidence to prove service and rebut Defendant's sworn statement to the contrary. Thus, Plaintiff's failure to prove service thereby deprived This Court of in-personam jurisdiction over Defendant. Where this Court has no in-personam jurisdiction the only limited action within its authority is dismissal. Case was dismissed.
Plaintiff filed This instant Motion to Reargue pursuant to CPLR 2221 (d) which was granted without opposition and Defendant's non-appearance on February 27, 2020. This instant motion was ultimately argued at Virtual oral argument held on January 20, 2021.
Movant for leave to reargue underlying motion must persuade court that " matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion " is reversible error ( CPLR 2221 [d] ; Matter of Miness v Deegan , 41 Misc 3d 1206(A), 977 N.Y.S.2d 668 [A], 41 Misc.3d 1206(A), 977 NYS 2d 668, 2013 N.Y. Slip Op. 51601(U), 2013 WL 5480399, 2013 NY Misc LEXIS 4359 [U], 2013 WL 5480399, 41 Misc.3d 1206(A), 977 N.Y.S.2d 668 ; Bolos v Staten Island Hosp. , 217 A.D.2d 643, 629 NYS 2d 809 [2d Dept 1995] ; Schneider v Solowey , 141 A.D.2d 813, 529 NYS 2d 1017 [2d Dept 1988] ). It has been held that proper practice requires that motion for relief to reargue must be brought by order to show cause in lieu of by notice of motion for judicial economy and failure to do so may be sufficient basis for denial ( Application of Central States Paper & Bag Co., Inc. , 132 NYS 2d 69, 72 [Sup Ct, NY County 1954], aff'd mem 284 A.D. 841, 134 NYS 2d 271 [1st Dept 1954] ; Rubin v Dondysh , 147 Misc 2d 221, 222, 555 NYS 2d 1004 [Civ Ct, Queens County 1990] ). Nevertheless, it has also been held that CPLR 2221 (a) allows that said motions to reargue "shall be made, on notice, to the judge who signed the order ," as in herein ( Alta Apartments LLC v Wainwright, 4 Misc 3d 1009(A), 791 N.Y.S.2d 867 [A], 4 Misc.3d 1009(A), 791 NYS 2d 867, 2004 N.Y. Slip Op. 50797(U) [U], 2004 WL 1717573, 4 Misc.3d 1009(A), 791 N.Y.S.2d 867 [Civ Ct, NY County 2004] ). "A Motion to reargue is not an aggrieved party's second bite of the apple to present new or divergent arguments from its original failed arguments" ( 819 Realty Group LLC v Beast Fitness Evolved LLC , 2019 WL 4560432, 2019 NY Misc. LEXIS 5038 *14, 65 Misc.3d 1204(A), 2019 N.Y. Slip Op. 51496(U) [U], 8, 65 Misc 3d 1204(A) [A], 118 NYS 3d 367, 65 Misc.3d 1204(A), citing Giovanniello v Carolina Wholesale Off. Mach. Co., Inc. , 29 A.D.3d 737, 815 NYS 2d 248 [2d Dept 2006] ; Gellert & Rodner v Gem Community Mgt., Inc. , 20 A.D.3d 388, 797 NYS 2d 316 [2d Dept 2005] ; Pryor v Commonwealth Land Tit. Ins. Co. , 17 A.D.3d 434, 793 NYS 2d 452 [2d Dept 2005] ; Amato v Lord & Taylor, Inc. , 10 A.D.3d 374, 781 NYS 2d 125 [2d Dept 2004] ; Frisenda v X Large Enters. , 280 A.D.2d 514, 720 NYS 2d 187 [2d Dept 2001] ; Foley v Roche , 68 A.D.2d 558, 418 NYS 2d 588 [1st Dept 1979] ), nor does it allow aggrieved party to reargue the same issues already previously considered and decided by the court ( id, citing William P. Pahl Equip. Corp. v Kassis , 182 A.D.2d 22, 588 NYS 2d 8 [1st Dept 1992] ; Pro Brokerage v Home Ins. Co. , 99 A.D.2d 971, 472 NYS 2d 661 [1st Dept 1984] ).
In this instant reargument, Plaintiff circuitously and inconsistently argues that This Court erred as it overlooked the Affidavit of Service due to its unavailability at the time of the underlying oral argument of Defendant's OSC and court was mandated to take judicial notice of affidavit of service in court file by virtue of default judgment entered by clerk of court. Plaintiff argues that the fact of the authenticity of affidavit of service is established by virtue of the court clerk granting default judgment. Therefore, This Court's dismissal was unjust. A court clerk's issuance of default judgment is a ministerial act without judicial discretion nor judicial intervention...
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