Deily & Glastetter, LLP Ads" Pilar A. Cano, Partner d "a"á ""d Orneg amaw Albany, New York 12211 P: (518) 436-o344 F: (518) 436-8273 peano@deilylawfirm.com ªo, March 7, 2019 VIA U.S. FIRST CLASS MAIL AND NYSCEF Hon. Devin P. Cohen, J.S.C. Kings County Supreme Court 360 Adams Street, Part 91 Brooklyn, New York 11201 Re: Autovest, L.L.C. vs. Jennifer O'Hagan Our File No.: 31387.001 Index No.: 505107/2013 Honorable Judge Cohen, Our firm represents Plaintiff, Autovest, L.L.C. in the above-referenced action. Plaintiff received an ecourts notification advising that there is a Status Conference scheduled in this matter for May 13, 2019. On November 14, 2017, the Court issued a Decision/Order that was entered on January 30, 2018, vacating the default judgment. On February 26, 2018, the Plaintiff filed a Notice Discontinuing Action, discontinuing this action without prejudice. Enclosed herewith for the Court's review are copies of the Decision/Order and Notice Discontinuing Action. Accordingly, the Plaintiff respectfully requests that the Status Conference be removed from the Court's calendar, that this action be removed from the Court's active calendar and marked disposed. We thank the Court for its consideration. Respectfully submitted, DEILY & GLASTETTER, LLP. Cano, Esq. Enclosures PAC/mas
FILED: KINGS COUNTY CLERK 01/3072018 11: 2 6 AM) NYSCEF DOC. NO. 24 RECEIVED NYSCEF : 01/30/2018 Supreme Court of the State of New York Index Number 505107/2013 County of Kings Part 91..._....... DECISION/ORDER AUTOVEST, L.L.C., Recitation. as required by CPLR 2219 (a). of the papers consideredin the review of this Motion Plaintiff, Papers Numbered against Notice of Motion and Allidavits Annexed...,,,,. Order to Show Causeand Affidavits Annexed.., JENNIFER O'HAGAN, e A 0 a,. Defendant. Upon review of the foregoing documents, defendant's motion to vacate the default judgment against it is decided as follows: Plaintiff commenced this action against defendant to collect an alleged debt in the amount of $2,729.99, with interest. Plaintiff obtained judgment against defendant on April 15, 2014, in the amount of $3,711.80. In order to vacate the default judgment pursuant to CPLR 5015(a)(4), defendant must show that she was not properly served with process (Dae Hyun Chung v Google, Inc., 153 AD3d 494, 494 [2d Dept 2017]; Deutsche Bank Nat. Tr. Co. v O'King, 148 AD3d 776, 776-77 [2d Dept 2017]). A process server's affidavit of service creates a presumption of proper service (Deutsche Bank, 148 AD3d at 776-77). A defendant may defeat this presumption by submitting "a sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit" (Deutsche Bank, 148 AD3d at 777). If the presumption is rebutted, the court must hold a hearing to determine the propriety of service of process (id.). In support of her motion, defendant states in her affidavit that she does not live at 540 1 1 of 3
F ILED: KINGS COUNTY_CLERK 01/30 / 2018 11: 2 6 AM] NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/30/2018 17th Street, Brooklyn, New York, where, according to the Affidavit of Service, process was served. Defendant states that she has lived at 666 Warren Street, Brooklyn, New York, since December 2013. This is the same address listed on the Summons in this action. This sworn denial has sufficient detail to warrant vacatur of the judgment by default and calls into question the court's personal jurisdiction over defendant (id.; Emigrant Bank v Ramasir, 145 AD3d 856, 857 [2d Dept 2016]). In order to vacate default judgment pursuant to CPLR 5015(a)(1), defendant must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (Sussman v Jo-Sta Realty Corp2, 99 AD3d 787, 788 [2d Dept 2012]). This court finds that defendant has a reasonable excuse based on the explanation described above. Defendant also states in her affidavit that she has the following meritorious defenses: (1) the Complaint does not have a debt collector's license number; (2) the statute of limitations on plaintiff's claims has expired; (3) the NYC Department of Consumer Affairs does not show that plaintiff has a license to collect a debt; and (4) defendant has no business relationship with plaintiff, As to defendant's first and third defenses, New York City Code 20-490 states that someone acting as a "debt collection agency" must obtain a license to perform this work. In its opposition, plaintiff's counsel states that plaintiff has such a license, but it is not clear how plaintiff's counsel has personal knowledge of this information. In any event, CPLR 3015(e) states that, for causes of action that involve licensure from the department of consumer affairs, the Complaint shall state that "the plaintiff was duly licensed at the time of services rendered and shall contain the name and number, if any, of such license and the governmental agency which issued such license." If plaintiff fails to do so, defendant may move to dismiss under CPLR 2 of 3
[FILED : KINGS COUNTT CLERK 01/30/2018 1112 6 AM NYSCEF DQC. NO. 24 RECEIVED NYSCEF: 01/30/2018 3211(a)(7). Upon examination of the summons with notice in this action, there is no infonnation sufficient to demonstrate compliance with CPLR 3015(e). As to defendant's second defense, defendant argues in its reply that this transaction is governed by a four-year statute of limitations pursuant to UCC 2-275. Though fleshed out largely on reply, this court agrees that plaintiff's claim for breach of contract for an unpaid amount due on a vehicle plaintiff purchased is a contract for the sale of goods, and therefore governed by a four-year statute of limitations. It is unclear when plaintiff's claim accrued. However, plaintiff includes in its opposition papers a letter to defendant, dated August 7, 2009, which states that defendant's vehicle has been repossessed and defendant is deficient in her payment on the total amount owed. Consequently, it is reasonable to conclude that pl tiff's claim accrued on or before August 7, 2009. Because plaintiff did not commence this gation u il August 29, 2013, there is a strong possibility that plaintiff's claim is barred by the statute o limitations. co r- o As to defendant's fourth defense, that she has no business relationship with plaÿatiff, plaintiff submits in its opposition papers a copy of the assignment of the debt from the original holder to plaintiff. Although defendant does not contest the assignment in her reply, the assignment has not been authenticated by someone with personal knowledge of the document. Based on the foregoing, defendant has shown a reasonable excuse and potentially meritorious defense(s), and so the default judgment is hereby vacated. This constitutes the order of the court November 14. 2017 DATE DEVIN P20HE Acting Justice, Supreme Court FILED 3 FILEE) 3 O harr UAN 3 n 9910 KWGSCOUNTV On e 3 of 3
IFILED: KINGS COUNTY CLERK 02/26/2018 02 :13 PMI NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/26/2018 STATE OF NEW YORK SUPREME COURT COUNTY OF KINGS AUTOVEST, L.L.C., Index No. 505107/2013 Plaintiff, JENNIFER O'HAGAN, -against- NOTICE TO DISCONTINUE ACTION Defendant. To Whom It May Concern: Plaintiff, Autovest, L.L.C., hereby discontinues and ends its cause of action against Defendant, Jennifer O'Hagan, without costs and without prejudice to the Plaindff. Dated: February, 2018 Respectfully submitted D & GLASTETTER, LLP By: Pilar A. Cano, Esq. Attorney for the Plaintiff Deily & Glastetter, LLP 8 Southwoods Blvd., Suite 207 Albany, NY 12211 (518) 436-0344 NYC DCA No. 2046513-DCA 1 of 1