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SALAZAR v. SEN YU

Appellate Term of the Supreme Court of New York, Second Department
Dec 10, 2003
2003 N.Y. Slip Op. 51621 (N.Y. App. Term 2003)

Opinion

2002-1798 Q C.

Decided December 10, 2003.

Appeal by plaintiffs from an order of the Civil Court, Queens County (P. Kelly, J.), entered on September 17, 2002, which granted defendant's motion to vacate a default judgment.

Order unanimously reversed without costs and defendant's motion to vacate the default judgment denied.

PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.


In this action to recover damages sustained as a result of a motor vehicle accident, defendant moved to vacate a default judgment which was entered against him. In his affidavit in support, defendant stated that he no longer resided at the address which was listed with the Department of Motor Vehicles where he was served through substituted service pursuant to CPLR 308 (4). In his affirmation in support, defendant's attorney argued that plaintiff failed to satisfy the due diligence requirement set forth in CPLR 308 (4) prior to serving defendant through substituted service. The lower court granted defendant's motion to the extent of setting the matter down for a traverse hearing. On the adjourned date for the traverse hearing, plaintiffs' attorney appeared. However, the process server was not present and, as a result, the court granted defendant's motion.

A motor vehicle licensee who fails to notify the Commissioner of Motor Vehicles of a change of residence within 10 days of said change pursuant to Vehicle and Traffic Law § 505 (5), cannot challenge the propriety of an otherwise valid service made to his former address and, therefore, the fact that the motor vehicle licensee no longer resides at the address on file with the Department of Motor Vehicles does not, standing alone, constitute a reasonable excuse to vacate a default judgment ( see Choudhry v. Edward, 300 AD2d 529; Traore v. Nelson, 277 AD2d 443).

The affidavit of service establishes that the process server attempted to serve defendant on at least three different dates at four different times. Moreover, the process server spoke with one of defendant's neighbors in an effort to ascertain defendant's place of employment prior to "nailing and mailing" the summons and complaint pursuant to CPLR 308 (4). Therefore, under these circumstances, we are of the view that the due diligence requirement has been satisfied and defendant's motion failed to raise an issue of fact requiring a traverse hearing ( see Hanover New England v. MacDougall, 202 AD2d 724). Furthermore, after reviewing the affidavit of service, we are of the opinion that this is not a case of a perfunctory completion of a printed form ( cf. Little Shoppe Around Corner v. Carl, 80 Misc 2d 717). Under the circumstances, the Civil Court (M. Grays, J.) erred in initially granting defendant's motion to vacate the default judgment to the extent of setting the matter down for a traverse hearing. We note that defendant failed to proffer in admissible form a meritorious defense to the instant action ( cf. USAA Cas. Ins. Co. v. Singh, 184 Misc 2d 296 [App Term, 2d 11th Jud Dists]). Accordingly, the lower court's order should be reversed and defendant's motion to vacate the default judgment denied.


Summaries of

SALAZAR v. SEN YU

Appellate Term of the Supreme Court of New York, Second Department
Dec 10, 2003
2003 N.Y. Slip Op. 51621 (N.Y. App. Term 2003)
Case details for

SALAZAR v. SEN YU

Case Details

Full title:BYRON SALAZAR, ISABEL CRUZ and NELLY SALAZAR, Appellants, v. SEN YU…

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Dec 10, 2003

Citations

2003 N.Y. Slip Op. 51621 (N.Y. App. Term 2003)