A NYC COURT ADDRESSES DEFAULT JUDGMENTS

Parkchester Pres. Co. v. Jobartech,  NYLJ October 22, 2019, Date filed: 2019-10-11,  Court: Civil Court, Bronx, Judge: Judge Brenda Rivera, Case Number: 1754-18:

"It is significant to note that the Civil Courts of the City of New York entered 41,671; 33,771; and 53,099 default judgments in 2016, 2017, and 2018 respectively. In the nearly three years that this Judge has presided over Civil Court cases, this Judge has ruled on hundreds of motions to vacate a default judgment and in NONE of those cases, did the Court inquire, nor did the Plaintiff provide evidence that the Defendant’s address was a proper address for service prior to granting the default judgment. The Plaintiff only presented the self-serving affidavit of the process server, who stays employed by successfully serving Defendants. Judges often rationalize that a Defendant can always move to vacate their default when service is improper. This rationale is prejudicial to the Defendant and wrongly places the burden on the Defendant who now has to move to vacate a default judgment and offer sufficient details before he can even get a traverse, when the default judgment should not have been granted in the first place. Oftentimes, a Defendant cannot afford to take time off from work to attend Court; may live in a different state and cannot afford to come to New York for numerous appearances to defend an action; or are simply lost, overwhelmed, ignorant, or intimidated with the Courts. Their inability to afford to take time off from work or to navigate through the bureaucratic process is unfairly prohibitive and denies access to justice to many Defendants.

There has been lot of discussion in the Courts and articles published about the lack of access to justice and the inordinate number of default judgments entered by the Civil Courts of the City of New York. Yet, a majority of the default judgments are wrongly granted by Judges and Inquest Clerks when they fail to require the Plaintiff to establish the proper address for the Defendant. An affidavit of service, without corroborating evidence, is insufficient. A Plaintiff must establish, with corroborating evidence in admissible form, that the address where the Defendant was served is a proper address under CPLR 308. To be clear, a request for change of address from the Postmaster merely containing a post office stamp, an Accurrint search, and a credit report inquiry is insufficient as they rely on hearsay information. In order to satisfy the exception to the hearsay rule, the contents of the report must be sworn to by an authorized employee, must provide information for the Court to assess the accuracy of the record proffered, and must meet the requirements of CPLR 4518, as it is well-settled that the evidence submitted in support of a default judgment must be in admissible form."

Also note in this case:

"CPLR §306-b requires that the Summons and the Complaint be served within 120 days of the filing of the Summons and Complaint. In the interest of justice or upon good cause shown, the Courts may grant an extension of time to serve the Summons and Complaint upon consideration of several factors: (1) the expiration of the statute of limitations, (2) the explanation given for the late service, (3) the promptness with which the Plaintiff sought judicial extension of the time to serve, (4) prejudice to the Defendant, (5) diligence in attempting service, and (6) principled and supported determinations as to what is just and equitable under all of the relevant facts and circumstances of a case. See generally, Hafkin v. North Shore University Hospital, 279 AD2d 86 (2nd Dept. 2000).

In the instant case, the Plaintiff waited 16 months after it missed the deadline for service of the Summons and Complaint to move for a judicial extension."