Joosten v. Gale
| Decision Date | 28 April 1987 |
| Citation | 514 N.Y.S.2d 729,129 A.D.2d 531 |
| Parties | JOOSTEN v. GALE. |
| Court | New York Supreme Court — Appellate Division |
E. Phillips, for plaintiff-respondent.
M. Kurlander, Brooklyn, for defendant-appellant.
Before SANDLER, J.P., and CARRO, KASSAL, ELLERIN and WALLACH, JJ.
Motion by defendant-appellant for an order granting leave to reargue is granted, and, upon reargument, (1) the order of this court, dated February 10, 1987, 127 A.D.2d 1016, 511 N.Y.S.2d 456, affirming the order of the Supreme Court (Amos Bowman, J.), entered December 19, 1985, which granted plaintiff-respondent's motion for reargument of a prior order of the same court, and, upon reargument, denied defendant's motion to vacate a judgment entered against her on April 8, 1985, is vacated, and (2) the order of December 19, 1985 is unanimously modified, on the law, to the extent of (a) vacating the order of the Supreme Court (Ira Gammerman, J.), dated April 10, 1984, which held plaintiff's motion for a default judgment against defendant in abeyance pending a hearing on the issue of jurisdiction, (b) denying plaintiff's motion for an order pursuant to CPLR 3215 granting a default judgment against defendant without prejudice to renewal upon proper papers including either a complaint verified by plaintiff or an affidavit sworn to by him setting forth the facts constituting the claim and the amount due, and (c) vacating the judgment of the Supreme Court, New York County, entered April 8, 1985, and otherwise affirmed, without costs.
The action was brought to recover on a promissory note in the amount of $25,000. Although a copy of the affidavit of service is not included in the record, service was allegedly made pursuant to CPLR 308(2) by leaving a copy of the summons and complaint with the doorman of defendant's New York City apartment building. Defendant, who says she was residing in Florida at the time of this alleged service, obtained notice of the action, but, instead of answering, responded through Florida counsel by serving a "Notice of Special Appearance" stating that she had not resided in that apartment building for more than two years. Correctly regarding such special appearance to be a legal nullity, plaintiff moved for a default judgment. Plaintiff gave defendant notice of this motion (but see, CPLR 3215[f][1]; see also, 4 Weinstein, Korn and Miller, New York Civil Practice, p 3215.31), whereupon defendant retained a New York attorney and interposed opposition on the ground that the apartment building in question was not her dwelling place or usual place of abode. She also stated that she was physically handicapped and could not travel to New York to defend the action, and that Florida was a better forum in which to try the case. Special Term (Gammerman, J.) held the motion in abeyance for a hearing before a Special Referee on the issue of whether defendant resided in the apartment building at the time service of process was allegedly made there.
Although defendant's New York attorney had notice of the traverse, which was adjourned apparently on consent, neither defendant nor her attorney appeared thereat. The Special Referee nevertheless took proof of service, and issued a report finding service to have been proper and recommending that plaintiff's motion for a default judgment be granted.
Plaintiff's motion to confirm the Special Referee's report was made on notice to defendant's New York attorney, but no opposition was interposed. Special Term (McCooe, J.) confirmed the report and directed entry of a default judgment in the amount of $25,000 with interest. Plaintiff thereupon caused a judgment to be entered, which with interest and costs amounted to $43,856. A copy of this judgment was served on defendant's New York attorney.
Substituting lawyers, defendant then made a motion to vacate the judgment, arguing that her failure to appear at the traverse was excusable and that she had a strong case on the merits. With respect to the merits, she pointed out that the instrument sued upon does not contain words of negotiability, and asserted, among other things, that she never received value from the person to whom she gave this "I.O.U.". While defendant's proposed defenses were convincing, her excuse for not appearing at the traverse was not, amounting to nothing more than a bald statement that she was never apprised of the fact that the traverse had been scheduled. Plaintiff's opposition, consisting only of his attorney's affirmation, made an impressive showing that defendant's attorney knew of the traverse and that his failure to appear thereat was deliberate.
Special Term (Bowman, J.), apparently misapprehending that defendant was seeking to vacate the judgment on the ground that her failure to appear at the traverse was excusable, held her motion in abeyance for a second hearing on the issue of whether service was proper. Plaintiff, of course, immediately moved to reargue. Defendant's opposition was vigorous, but plainly without merit. There was simply no getting around the fact that there could be no basis for directing a second traverse absent a finding that defendant's failure to appear at the first was excusable. Granting reargument, Special Term recalled its prior order directing a second traverse, and, finding that defendant failed to show a valid excuse for not appearing at the traverse, denied vacatur of the judgment on that ground notwithstanding possible merit to defendant's proposed defenses. It was from this order that defendant took the appeal.
We unanimously affirmed without opinion, and continue to be of the view that defendant failed to offer a reasonable excuse for not appearing at the traverse. She claims that she was not aware that the traverse had been ordered, but the record shows that if she herself was not so aware, her New York attorney was, and nowhere does she explain why he failed to appear at the traverse on her behalf (see, Manufacturers Hanover Trust Company/Suffolk, N.A. v. Cooper, 71 A.D.2d 881, 419 N.Y.S.2d 649).
On reargument of the appeal, defendant's attorney emphasizes, as he did on the appeal, the strong merits of defendant's various proposed defenses and that she...
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...a complaint, default judgments are not “rubber-stamped once jurisdiction and a failure to appear have been shown” (Joosten v. Gale, 129 A.D.2d 531, 535, 514 N.Y.S.2d 729). Rather, “[s]ome proof of liability is also required to satisfy the court as to the prima facie validity of the uncontes......
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...The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts.” ( Joosten v. Gale, 129 A.D.2d 531, 535, 514 N.Y.S.2d 729 [1st Dept.1987] [internal citation omitted]; Feffer v. Malpeso, 210 A.D.2d 60, 619 N.Y.S.2d 46 [1st Dept.1994].) Here, plaintiff did ......
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Zelnik v. Bidermann Industries U.S.A., Inc.
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A nullity or not? The status of a default judgment entered absent compliance with CPLR 3215(f).
...46 (App. Div. 1st Dep't 1994); Mullins v. DiLorenzo, 199 A.D.2d 218, 606 N.Y.S.2d 161 (App. Div. 1st Dep't 1993); Joosten v. Gale, 129 A.D.2d 531, 514 N.Y.S.2d 729 (App. Div. 1st Dep't 1987); see also SIEGEL, NEW YORK PRACTICE, supra note 1, [section] 295, at 480 ("The second requirement, p......