U.S. Equities Corp. v. Brito

73 Misc. 3d 148(A), 2021 NY Slip Op 51270(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 29, 2021
• Docket: 570527/19
• Status: Unpublished

Opinion

U.S. Equities Corp. v Brito (2021 NY Slip Op 51270(U)) [*1]

U.S. Equities Corp. v Brito

2021 NY Slip Op 51270(U) [73 Misc 3d 148(A)]

Decided on December 29, 2021

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 29, 2021

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Hagler, Silvera, JJ.
570527/19

U.S. Equities Corp., Plaintiff-Appellant,

against

Melaneo J. Brito, Defendant-Respondent.

Plaintiff, as limited by its brief, appeals from that portion of an amended order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), dated April 14, 2020, which granted defendant's motion to vacate a default judgment to the extent of setting the matter down for a traverse hearing and for final disposition of the motion.

Per Curiam.

Order (Sabrina B. Kraus, J.), dated April 14, 2020, reversed, without costs, and the motion denied.

Defendant's affidavit submitted 11 years after entry of the default judgment failed to rebut the presumption of proper service created by the affidavit of the process server (see Wells Fargo Bank, NA v Edwards, 95 AD3d 692 [2012]). The portion of defendant's affidavit that purported to dispute that personal service had been made upon a person of suitable age and discretion at his residence was not specific enough to warrant a traverse hearing (see Perilla v Carchi, 100 AD3d 429, 430 [2012]). Defendant did not dispute that the address where service was made was his dwelling, or that a person identified as Leslie Brito was present in his home on the day of service. Nor did defendant dispute that Leslie Brito, who the process server described as defendant's "14-20" year old relative, was "objectively . . . of sufficient maturity, understanding and responsibility under the circumstances so as to be reasonably likely to convey the summons" to him (Roldan v Thorpe, 117 AD2d 790, 791 [1986], appeal dismissed 68 NY2d 663 [1986]) and, thus a person of "suitable age and discretion" within the meaning of CPLR 308(2) (see Marathon Structured Asset Solutions Trust v Fennell, 153 AD3d 511, 512 [2017]; see also Bossuk v Steinberg, 58 NY2d 916 [1983]; Village of Nyack Hous. Auth. v Scott, 1 Misc 3d 22 [App Term, 2d Dept, 9th & 10th Jud Dists 2003]).

In any event, defendant waived any defense of lack of personal jurisdiction by making payments under the wage garnishment order for approximately two years (see Calderock Joint Ventures, L.P. v Mitiku, 45 AD3d 452, 453 [2007]).

Nor was defendant entitled to vacatur of the October 2008 default judgment under CPLR [*2]5015(a)(1). Despite a 2016 restraint on defendant's bank account, defendant defaulted on his first vacatur motion, continued to make 56 payments under the wage garnishment for a period of more than two years, and signed a May 2019 agreement consenting to additional payment, a three-year delay which "evidenced a willingness to accede to the terms of the judgment" (Cooper v Carlson, 130 AD2d 703 [1987], appeal dismissed 70 NY2d 747 [1987]). Defendant also failed to establish that the limited portion of his bank account that was restrained consists of exempt funds.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 29, 2021