AND INDIVIDUALS SHOULD UPDATE DMV WITH ANY CHANGE OF ADDRESS

Last week, I reported on a case which illustrated a corporation's obligation to keep the Secretary of State advised of [its] current and correct address and that its failure to receive process due to [its] breach of the obligation to keep a current address on file with the Secretary of State does not constitute a reasonable excuse for its default....well the same goes with individuals and the DMV. And this case illustrates why.

Sheikh v. BOHTIS, 2020 NY Slip Op 51052 - NY: City Court, Civil Court September 11, 2020:

"It is well established law that it is within the sole discretion of the court in the interest of justice to vacate default judgment based upon "excusable default" pursuant to CPLR 5015(a)(1). At issue in this instant matter is CPLR 5015(a)(1):

a) On Motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry

To vacate a default judgment pursuant to CPLR 5015(a)(1) movant must demonstrate a reasonable excuse for its failure to appear and file answer to complaint as well as potentiality of a meritorious defense to the cause of action (see Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co., 67 NY2d 138, 141, 492 NE2d 116, 118, 501 NYS 2d 8, 10, 1986 NY LEXIS 17531, *7 [1986], citing Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Blake v City of New York, 90 AD2d 531 [2d Dept 1982]).

It is also well settled law, where a defendant provides her driver's license with a wrong address to the police and a plaintiff at the scene of a motor vehicle accident, defendant is estopped from jurisdictional defense premised on service upon a wrong address (see e.g. Gardner v Tully, 227 AD2d 587, 643 NYS 2d 204, 1996 NY App Div LEXIS 6110, *3 [2d Dept 1996]; Anello v Barry, 149 AD2d 640, 540 NYS 2d 460 [2d Dept 1989]; Lavery v Lopez, 131 AD2d 820, 517 NYS 2d 182 [2d Dept 1987]; Treutlein v Gutierrez, 129 AD2d 791, 514 NYS 2d 781 [2d Dept 1987]; Hill v Jones, 113 AD2d 874, 493 NYS 2d 603 [2d Dept 1985]). "This is particularly so where a defendant has failed to keep the Department of Motor Vehicles apprised of any change of address, as required by Vehicle and Traffic Law § 505 (5), with the result that the plaintiff's process server is misdirected in his or her efforts to locate and serve the defendant" (Gardner v Tully, 227 AD2d at 588, citing McNeil v Tomlin, 82 AD2d 825, 439 NYS 2d 430 [2d Dept 1981]; see also Harrington v Dickinson, 159 AD2d 876, 553 NYS 2d 219 [3d Dept 1990]; Kramer v Ryder Truck Rental, 112 AD2d 194, 490 NYS 2d 863 [2d Dept 1985]). Vehicle Traffic Law § 505 (5) is a strict liability law:

"5. Change of address. It shall be the duty of every licensee to notify the commissioner in writing of any change of residence of such licensee within ten days after such change occurs and to make a notation of such change of residence on such license in the place provided by the commissioner."

This is a statutory mandate to be adhered to and not a mere suggestion or recommendation. The motor vehicle licensee who notifies the Commissioner of Motor Vehicles on the eleventh day of any change of residence is in violation of the law and subject to enforcement. Accordingly, defaulted defendant who fails to comply will be and has been estopped by precedential law from claiming improper service premised on her former address (see Hill v Jones, 113 AD2d 874 [2d Dept 1985]; Kramer v Ryder Truck Rental, 112 AD2d 194; see generally Lavery v Lopez, 131 AD2d 820 [2d Dept 1987]; Poet v Kolenda, 142 AD2d 633, 530 NYS 2d 589 [2d Dept 1988]). It stands to reason, where defaulted defendant has violated law, she should not benefit from her violation to the detriment of an aggrieved party. Particularly, where said violation of Vehicle Traffic Law § 505 (5) directly affects redress of alleged aggrieved party as a result of an MVA. A motor vehicle license is a statutory privilege to allow licensee to traverse the intrastate and interstate roads. In order to enjoy said privilege the Vehicle Traffic Laws must be strictly adhered to.

In this instant matter, Defendant herein violated Vehicle Traffic Law § 505 (5) for six years yet continued to enjoy the privilege afforded by the Commissioner of Motor Vehicles, a driver's license to traverse the roads. More so probative, it was as a result of the exercise of this statutory privilege that allowed Defendant to be engaged in the MVA at issue, resulting in this cause of action, resulting in default judgment that he now complains of as not having been received because sent to a former address and not his current address, which he caused by not providing his current address. It was incumbent on Defendant to comply with the law if he intended to continue to exercise this privilege conferred upon him by the Commissioner of Motor Vehicles. Defendant states that because he provided his vehicle registration with his new address to the police at the scene of the accident, which was then placed on the police accident report evidenced that he had no intent to misrepresent or deceive.^[1] However, this does not cure Defendant's violation of Vehicle Traffic Law § 505 (5) which does not require an element of intent, thus being a strict liability law. Defendant's driver's license is deemed an instrumentality of identification of the person, whereas the vehicle registration is an instrumentality of identification for the vehicle. As a practical matter, there are occasions where a New York State driver's license address and her motor vehicle registration's address for same person may be so divergent where the latter bears an out of state address. Therefore, an address on a vehicle registration is not dispositive nor necessarily relevant as to the address or domicile of Defendant. Rather, a driver's license as an instrumentality of identification of the person is relied upon not merely as a licensee to traverse interstate and intrastate roads but for other legal mandates, including national security. It is not incumbent on the aggrieved party of an MVA to choose vehicle registration address versus driver's license address on a police accident report. Particularly of note, where the defaulted judgment is granted in the jurisdiction of Small Claims Court:

"Small claims shall be commenced upon the payment by the claimant of a filing fee of fifteen dollars for claims in the amount of one thousand dollars or less and twenty dollars for claims in the amount of more than one thousand dollars, without the service of a summons and, except by special order of the court, without the service of any pleading other than a statement of his cause of action by the claimant or someone in his behalf to the clerk, who shall reduce the same to a concise, written form and record it in a docket kept especially for such purpose. Such procedure shall provide for the sending of notice of such claim by ordinary first class mail and certified mail with return receipt requested to the party complained against at his residence, if he resides within the city of New York, and his residence is known to the claimant, or at his office or place of regular employment within the city of New York if he does not reside therein or his residence within the city of New York is not known to the claimant. If, after the expiration of twenty-one days, such ordinary first class mailing has not been returned as undeliverable, the party complained against shall be presumed to have received notice of such claim. Such notice shall include a clear description of the procedure for filing a counterclaim, pursuant to subdivision (c) of this section"

(NY CLS NYC Civil Ct Act § 1803[a]). Service of Small Claims action is effectuated not by process server, but rather by Clerk of the Small Claims Court by first class mail to New York City domicile. Therefore, issue of due diligence by process server in investigating defendant's correct address is not at issue herein. Because this matter is brought within "The People's Court", procedures in law are somewhat relaxed to allow mostly pro-se aggrieved parties to have their day in court. The correct address and domicile of Defendant on his driver's license in causes of action for MVA in Small Claims Court is paramount in the dispensation of justice. Violation for six years of Vehicle Traffic Law § 505(5) by Defendant failing to supply his new address for his driver's license yet having placed his new address on the vehicle registration is not excusable default. Finding otherwise, would reward Defendant for his six-year violation of the strict liability Vehicle Traffic Law which provided him the privilege to operate the motor vehicle. It is his exercise of this privilege which caused him to be a party in this instant MVA, in the first instance, for which he had a duty to provide his current address and domicile to the Commissioner of Motor Vehicles, the police and the Plaintiff at the scene of the MVA in which he was a party to. It is within the exclusive province and sound discretion of the court in the interest of justice whether an excuse presented for the default is reasonable to invoke its judicial discretion to grant relief from default judgment. Defendant's actions and omissions are not reasonable and therefore, not excusable default pursuant to CPLR 5015(a)(1). Failing to have established reasonable excuse obviates any analysis into the second prong, potentiality of meritorious defense. Consequently, This Court declines to invoke its judicial discretion to vacate Defendant's default judgment."

CORPORATIONS AND OTHER ENTITIES SHOULD UPDATE NYS SECRETARY OF STATE WITH ANY CHANGE OF ADDRESS

And this case illustrates why.

Schwartzberg v. PRO-ACTIVE HOLDINGS, LLC, 2020 NY Slip Op 32980 - NY: Supreme Court September 11, 2020:

"It is well settled that a defendant seeking to vacate a default judgment pursuant to CPLR 5015(a) "must demonstrate a reasonable excuse for the delay, as well as a meritorious defense to the action." Rodgers v 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 69 AD3d 510 (1st Dept 2010); see also Matter of Messiah G. (Giselle F.), 168 AD3d 420 (1st Dept 2019). This Court has the discretion to determine whether the proffered excuse is sufficient. Rodgers v 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 69 AD3d at 510.

In his affidavit in support of the motion, Ramson states, inter alia, that:

[a]s for a reasonable excuse for [defendant's] default, all I can say is that by the time [p]laintiff commenced [the captioned action], [defendant] had all but ceased its operations and had vacated its [office] located at 50 Broad Street in Manhattan. This was the address [defendant] had designated for service upon it by New York's Secretary of State. For this reason, [p]laintiff's [motion for summary judgment in lieu of complaint] and the resulting [j]udgment were not received by me until the end of 2018, well after the fact."

Doc. 18 at par. 20.

Ramson admits, "[u]pon information and belief", that defendant was served with the motion via the Secretary of State pursuant to Business Corporation Law § 306 and that the Secretary of State presumably mailed the summons and moving papers to defendant's former address on Broad Street.^[1] Doc. 23. Thus, Ramson does not dispute that the defendant was properly served at the Broad Street address on file with the Secretary of State. A presumption of receipt arises once service is completed on the Secretary of State, defendant's designated agent, regardless of whether it is actually received by the company's representative. See 26 Warren Corp. v Aetna Cas. & Sur. Co., 253 AD2d 375, 376 (1st Dept 1998). Although Ramson maintains that defendant no longer occupied the Broad Street address, he does not specify when it vacated the premises or whether it ever had a subsequent address. If defendant was no longer at the Broad Street address, it had an obligation to "keep the Secretary of State advised of [its] current and correct address" and its failure "to receive process due to [its] breach of the obligation to keep a current address on file with the Secretary of State ... does not constitute a reasonable excuse" for its default. Crespo v A.D.A. Mgmt., 292 AD2d 5, 10-11.

Despite his claim that defendant had "all but ceased its operations" by the time this action was commenced, this representation is extremely vague. Does it mean that the company was winding down? That it went bankrupt? That it was dissolved? Even assuming, arguendo, that defendant was no longer in business, "a dissolved corporation may sue or be sued." See Ford v. Pulmosan Safety Equipment Corp., 52 AD3d 710, 711 (2d Dept 2008) (citation omitted). Therefore, this, too, does not constitute a reasonable excuse.

Ramson further proffers as an excuse that, since he and plaintiff were friends, the latter knew how to communicate with him but "never bothered to email [him] any notification that he had filed a motion for [summary judgment]." Doc. 18 at par. 21. However, this contention, based solely on Ramson's personal expectations and devoid of any legal support, does not establish a reasonable excuse.

Given that defendant clearly failed to establish a reasonable excuse for its default, there is no need to address whether it has a meritorious defense, and, thus, the branch of the motion seeking relief pursuant to CPLR 5015(a)(1) is denied."

E FILING ELIMINATES EXCUSE FOR DEAFULT

E Filing is convenient but it also negates a lack of notice.

U.S. Bank, N.A. v Essaghof, 2019 NY Slip Op 08888, Decided on December 11, 2019, Appellate Division, Second Department:

"We agree with the Supreme Court's determination to deny the defendants' motion pursuant to CPLR 5015(a)(1). "A party seeking to vacate an order entered upon his or her failure to oppose a motion is required to demonstrate, through the submission of supporting facts in evidentiary form, both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion" (Bhuiyan v New York City Health & Hosps. Corp., 120 AD3d 1284, 1284; see CPLR 5015[a][1]; Kondrotas-Williams v Westbridge Enters., Inc., 170 AD3d 983, 985; Soto v Chelsea W26, LLC, 166 AD3d 1048, 1049). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" (Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 886; see Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705; New Century Mtge. Corp. v Chimmiri, 146 AD3d 893, 894). "The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default" (Option One Mtge. Corp. v Rose, 164 AD3d 1251, 1252; see Torres v Rely On Us, Inc., 165 AD3d 731, 733; GMAC Mtge., LLC v Guccione, 127 AD3d 1136, 1138). "Conclusory and unsubstantiated allegations of law office failure are not sufficient" (Torres v Rely On Us, Inc., 165 AD3d at 733 [internal quotation marks omitted]; see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 707; U.S. Bank N.A. v Barr, 139 AD3d 937, 937-938). "[M]ere neglect [*2]is not a reasonable excuse" (Torres v Rely On Us, Inc., 165 AD3d at 733 [internal quotation marks omitted]; see OneWest Bank, FSB v Singer, 153 AD3d 714, 716; JP Morgan Chase Bank, N.A. v Russo, 121 AD3d 1048, 1049).

In support of their motion, the defendants submitted an affirmation from their attorney, who explained that he had left for Florida on a two-week vacation for his wedding and honeymoon a day before the plaintiff served and filed its motion. Counsel asserted that, when he returned and checked his unread emails, the email to which the plaintiff's motion papers were annexed was not among his unread emails, and therefore he was "unaware that Plaintiff had filed [its] motion."

In opposition to the defendants' motion, the plaintiff submitted copies of numerous New York State Courts Electronic Filing (hereinafter NYSCEF) email notifications and alerts from the Supreme Court, Suffolk County, sent prior to the return date of the plaintiff's motion, demonstrating that at least five separate automated court notices concerning the plaintiff's motion filing had been emailed to the defendants' attorney prior to the return date of the plaintiff's motion, including one that was emailed more than two weeks after the defendants' attorney left for his two-week vacation. Absent any explanation that would take into account the email notification that arrived after he had returned to the office, and his failure to provide the exact details concerning when he became aware of the default and precisely what he did upon learning of the order granting the plaintiff's unopposed motion (cf. Diamond v Leone, 173 AD3d 686, 687-688), the defendants' claim of law office failure was insufficient to demonstrate a reasonable excuse for their default (see Option One Mtge. Corp. v Rose, 164 AD3d at 1252)."

WHAT IS LAW OFFICE FAILURE

In this case, counsel alleged law office failure as a reasonable excuse for not filing for a default judgment when seeking an exception pursuant to CPLR 3215 (c) for entry of judgment after the expiration of one year after the default. However, this court wanted specific facts of the office failure not just the mere allegation.

Capital One Bank (USA), N.A. v Eastman, 2019 NY Slip Op 50253(U), Decided on March 6, 2019, Civil Court Of The City Of New York, Kings County Roper, J.:

"Law office failure may be viable grounds for reasonable excuse (Matter of Esposito, 57 AD3d 894 [2d Dept 2008]). However, the bar is high. Even though the court has discretion pursuant to CPLR 2005, "as a matter of law in the interests of justice to excuse delay or default resulting from law office failure," said excuse must be so presented with detailed articulable facts that are not amorphous, vague or subject to arbitrary interpretations (CPLR 2005; CEO Bus. Brokers, Inc. v Alqabili, 105 AD3d 989, 990 [2d Dept 2013]; HSBC Bank USA, N.A. v Wider, 101 AD3d 683 [2d Dept 2012]). The Appellate Division, Second Division held:

"The Supreme Court providently exercised its discretion in rejecting the plaintiff's excuse of law office failure and properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c). The plaintiff's excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852; Baruch v Nassau County, 134 AD3d 658, 659; Mattera v Capric, 54 AD3d 827, 828). The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff's file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate's affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred. The one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no indication that the attorney had left prior thereto."

(Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 964 [2d Dept 2018]). "Here, the plaintiff's assertions that it did not take any proceedings for entry of judgment within one year after the defendants' default due to law office failure occasioned by the dissolution of the law firm originally representing it, combined with delays caused by Hurricane Sandy in 2012, were conclusory and unsubstantiated, and did not rise to the level of a reasonable excuse (see Bank of NY Mellon v Colucci, 138 AD3d 1047, 1047-1048, [2016]; Buchakian v Kuriga, 138 AD3d 711, 712-713, [2016]; Baruch v Nassau County, 134 AD3d at 659; Ryant v Bullock, 77 AD3d 811, 812 [2010])."

(U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852 [2d Dept 2016]). "Here, the affirmation of an attorney from the law firm representing the appellants explained that the firm was downsizing significantly, two attorneys who had been handling the case were no longer with the firm, and the newly-assigned attorney's secretary, upon whom the attorney relied for calendaring matters, had recently left the firm. This was a sufficiently detailed explanation for the law firm's failure to appear (see Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr. Corp., 45 AD3d 634, 636 [2007]; Friedman v Crystal Ball Group, Inc., 28 AD3d 514, 515 [2006]; Weekes v Karayianakis, 304 AD2d 561, 562 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682 [1993])."

(Matter of Esposito, 57 AD3d 894, 895 [2d Dept 2008]). "In this case, the excuse proffered by the defendants was limited to the self-serving and unsubstantiated allegations" (Morris v Metropolitan Transp. Auth., 595 NYS 2d 539, 540 [2d Dept 1993]). "Here, defense counsel's allegation of law office failure was vague, conclusory, [*4]unsubstantiated (see HSBC Bank USA N.A. v Wider, 101 AD3d 683 [2012]; Cantor v Flores, 94 AD3d 936, 937 [2012]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 789-790 [2011]), and unreasonable under the circumstances (cf. Stolpiec v Wiener, 100 AD2d 931, 932 [1984])."

(CEO Bus. Brokers, Inc. v Alqabili, 105 AD3d 989, 990 [2d Dept 2013]).

In the instant matter herein, plaintiff as movant fails to provide detailed articulable facts and allegations as to its law office failure to viably establish reasonable excuse for the delay in filing entry of judgment after default. It strains credulity and is indeed an affront to this Honorable Court that plaintiff's law office failure upon which it relies for its reasonable excuse to satisfy the high bar for the "sufficient cause" exception in this strict mandatorily applied statute of CPLR 3215 (c) is encapsulated merely as, "Plaintiff's counsel inadvertently allowed the one-year period to elapse."[FN1] "Inadvertently", accidentally, unwittingly, mistakenly or casually, is merely an "oops" defense where not accompanied by articulable substantiated corroborating facts. Indeed, the court cannot entertain or give viability to a pro-se party arguing such a defense wholly devoid of any substance, nor likewise even more so to that of a represented party as plaintiff herein in this instant matter. Here, as pled by plaintiff with lack of specificity, including dates, times, place of occurrence and substantiating facts for law office failure. No qualifications, no specifics, no articulable facts, no colorable legal arguments whatsoever. Plaintiff failed to even attempt to set forth any caselaw with legal analysis for its position. The lack thereof of facts and of legal argument is a sanctionable frivolous filing of this instant motion.[FN2] Plaintiff presents no relevant prevailing precedential law utilizing the most basic reasoning skills of a law school student to provide a brief of its legal position for the court to consider as to the remedy that's sought by movant. Where the law is not in a movant's favor, at the very least present the current state of the law to the court and then movant may argue to differentiate the facts from the prevailing holdings against movant's position. Court finds that failure to so do and merely make a vague, conclusory, unsubstantiated, arbitrarily [*5]suggestive statement is a frivolous filing unnecessarily clogging up the very strained judicial resources, which negatively impacts the efficiency of rendering justice to our citizens. Such frivolous filings are particularly diametrically opposed to the intent of Excellence Initiative by Honorable Chief Judge.[FN3]"