Youngstown Tube Co. v. Russo
| Decision Date | 19 February 2014 |
| Docket Number | Index No. 9417/2012 |
| Citation | 2014 NY Slip Op 33328 (U) |
| Parties | YOUNGSTOWN TUBE CO., Plaintiff v. ANTHONY J. RUSSO, individually and d/b/a UNIVERSAL FIRE FABRICATING & SUPPLY, Defendants. |
| Court | New York Supreme Court |
2014 NY Slip Op 33328(U)
YOUNGSTOWN TUBE CO., Plaintiff
v.
ANTHONY J. RUSSO, individually and d/b/a UNIVERSAL FIRE FABRICATING & SUPPLY, Defendants.
Index No. 9417/2012
SUPREME COURT OF THE STATE OF NEW YORK IAS PART - COUNTY OF ORANGE
February 19, 2014
Present: HON. ROBERT A. ONOFRY, A.J.S.C.
DECISION/ORDER
To commence the statutory time period for appeals as of right (CPLR 5513 [a]),you are advised to serve a copy of this order, with notice of entry, upon all parties.
Motion Date: December 10, 2013
The following papers numbered 1 to 7 were read and considered on this motion by Defendant Anthony Russo, in his individual capacity, in which Defendant seeks: (1) An Order setting aside and vacating a Default Judgment entered on August 22, 2013, for the sum of $41,832.48; and (2) upon the vacatur of same, dismissing complaint and all causes of action alleged therein:
| Order to Show Cause - A. Russo Affidavit - E. Russo Affidavit - Exhibits A-I | 1-4 |
| Rametta Affirmation in Opposition-Exhibits A-J | 5-6 |
| Russo Reply Affidavit | 7 |
Upon the foregoing papers, it is
ORDERED, that Defendant's motion is denied for the reasons set forth below.
The facts, insofar as they are relevant to the pending motion, reveal that Plaintiff commenced the instant action by the filing of a Summons and Complaint on or about October 24, 2012. Service was thereafter effectuated upon Defendant by serving a person of suitable age and discretion on
Page 2
November 17, 2012, service which was supplemented, pursuant to CPLR §308(4), by followup service by mail of a copy the Summons and Complaint on November 19, 2012.
In its complaint, Plaintiff seeks to recover for monies allegedly due and owing pursuant to a Credit Agreement (the "Agreement") entered into between the parties, the Defendant's purchase of good on credit and his default in the payment of same. Plaintiff further alleges that the outstanding principal balance, as of the date of default [March 2008] amounts to $30,500.37. Plaintiff therefore seeks recovery of the unpaid balance, together with interest and costs from the alleged date of default.
Notwithstanding the aforementioned service, Defendants failed to appear, enter an answer or request an extension of their time to do so. Thereafter, and on August 22, 2013, a Judgment was entered in the Orange County Clerk's Office based upon Defendants' default
Defendant Anthony Russo, in his individual capacity, now moves to vacate the Judgment upon multiple grounds including, inter alia: (1) improper service; and (2) that he did not do business with Plaintiff in his individual capacity. In support of his application, Defendant avers that he was never served with the Summons and Complaint, that his wife does not fit the description of the woman upon whom service of process was allegedly effectuated upon, and that the mail may not have been delivered to his home due to an incorrect spelling of the street name. Plaintiff further argues that he only did business with the Plaintiff through his corporation, Universal Fire Fabricating & Supply, Inc., [a company which he admits owes the debt but has since ceased operation]. He further avers that he never transacted business in his individual capacity.
In opposition, Plaintiff has submits a copy of the Summons and Complaint and an Affidavit of Service of same. Thus, Plaintiff argues, despite Defendant's unsupported claims to the contrary,
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