Discover Bank v. Eschwege

• Decision Date: 19 March 2010
• Citation: 71 A.D.3d 1413,897 N.Y.S.2d 333
• Parties: DISCOVER BANK, Plaintiff-Respondent, v. Ellen S. ESCHWEGE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 333 71 A.D.3d 1413 DISCOVER BANK, Plaintiff-Respondent, v. Ellen S. ESCHWEGE, Defendant-Appellant. Supreme Court, Appellate Division, Fourth Department, New York. March 19, 2010.

Law Offices of Kenneth Hiller, Amherst (Kenneth R. Hiller of Counsel), for Defendant-Appellant.

Eric M. Berman, P.C., Babylon (Kevin M. Knab of Counsel), for Plaintiff-Respondent.

PRESENT: SMITH, J.P., CARNI, PINE, AND GORSKI, JJ.

MEMORANDUM:

In this action to recover, inter alia, money andinterest owed by defendant in connection with a consumer credit card, plaintiff served defendant pursuant to CPLR 308(4) by affixing copies of the summons and complaint to the door of defendant's residence on or before July 17, 2007, and by mailing copies to the same address on July 19, 2007. Plaintiff filed the proof of service on August 16, 2007, beyond the 20-day filing period required by CPLR 308(4). Defendant did not appear in the action, and Supreme Court awarded plaintiff a default judgment on November 29, 2007. On January 17, 2008, defendant moved, inter alia, to vacate the default judgment, and the court granted that part of the motion. Plaintiff thereafter moved for leave to reargue its opposition to defendant's motion. The court granted plaintiff's motion for leave to reargue and, upon reargument, denied defendant's motion in its entirety and reinstated the default judgment.

Failure to file proof of service within the time specified in CPLR 308(4) is not a jurisdictional defect but, rather, is a procedural irregularity that may be cured by an order permitting the late filing of proof of service nunc pro tunc ( see Zareef v. Lin Wong, 61 A.D.3d 749, 749, 877 N.Y.S.2d 182; Rosato v. Ricciardi, 174 A.D.2d 937, 937-938, 571 N.Y.S.2d 633; Ward v. Kaufman, 120 A.D.2d 929, 931, 502 N.Y.S.2d 883). Indeed, a court may exercise its discretion and sua sponte cure the irregularity ( see Reporter Co. v. Tomicki, 60 A.D.2d 947, 401 N.Y.S.2d 322, lv. dismissed 44 N.Y.2d 791, 406 N.Y.S.2d 41, 377 N.E.2d 485, 44 N.Y.2d 851; Vardi Colored House, Inc. v. Dean, 2008 N.Y. Slip Op. 31362[U], 2008 WL 2113292; CPLR 2001, 2004). A court may not, however, "[make] that relief retroactive to [a] defendant['s] prejudice by placing [the] defendant[ ] in default as of a date prior to the order" ( Rosato, 174 A.D.2d at 938, 571 N.Y.S.2d 633), nor may a court give effect to a default judgment that, prior to the curing of the irregularity, "was a nullity requiring vacatur" ( id.; see Bank of New York v. Schwab, 97 A.D.2d 450, 467 N.Y.S.2d 415; Red Creek Natl. Bank v. Blue Star Ranch, 58 A.D.2d 983, 396 N.Y.S.2d 936).

We conclude that, in granting plaintiff's motion for leave to reargue, the court properly exercised its discretion, sua sponte, to cure the procedural irregularity. By reinstating the default judgment, however, the court erred in making the relief retroactive to the prejudice of defendant by placing defendant in default as of a date prior to the order ( see Rosato, 174 A.D.2d at 938, 571 N.Y.S.2d 633), and the court also erred in reinstating a default judgment that, before the court's order, "was a nullity requiring vacatur" ( id.). Thus, the court erred in reinstating the default judgment, and instead should have given defendant an opportunity to answer or otherwise...