Radiology Today. P.C.v.N.Y. Cent. Mut. Fire Ins.

Civil Court of the City of New York, Kings CountySep 7, 2004
2004 N.Y. Slip Op. 50988 (N.Y. Misc. 2004)

86043/03.

Decided September 7, 2004.


The Court denies defendant's motion to vacate the default judgment entered against it on October 27, 2003. In order to vacate a default judgment, plaintiff must show both an excuse for its default and a meritorious defense (CPLR § 5015(a)(1); Wyckoff Heights Medical Center v. Merchants Ins. Co. of New Hampshire, 2 AD3d 841 [2d Dept 2003]). As set forth below, defendant has not shown that it has a meritorious defense, and accordingly, its motion must be denied.

This matter was commenced by filing of a summons and complaint on June 20, 2003. Plaintiff served the State Insurance Department in Albany on June 27, 2003 and the State Insurance Department forwarded a copy of the summons and complaint to defendant on July 2, 2003. Defendant contends that it never received the summons and complaint allegedly forwarded by the State Insurance Department. Instead, defendant asserts that it first learned of this action on or about October 27, 2003, when it received a Statement for Judgment from plaintiff stating that the time to answer had expired and that plaintiff planned to seek a default judgment. On November 14, 2003, defendant asked plaintiff for a copy of the Summons and Complaint which plaintiff provided to it. On November 28, 2003, Defendant served its answer on plaintiff, which plaintiff rejected. Plaintiff then obtained a judgment and served defendant with an information subpoena. Defendant then brought this motion.

Under CPLR § 317, a person served with a summons other than by personal delivery to him or to his agent for service who does not appear may be allowed to defend the action within one year after he obtains knowledge of the entry of the judgment upon a finding of the Court that he did not personally receive notice of the summons in time to defend and has a meritorious defense (See CPLR 317; Schiller v. Sun Rock Bldg. Corp., 260 AD2d 566 [2d Dept 1999]). Whether defendant's motion is viewed as arising under CPLR § 317 or CPLR § 5015, defendant has adequately shown both lack of actual notice and an excusable default.

However, defendant has not established that it has a meritorious defense. In order to establish that it has a meritorious defense, defendant relied on an "Affidavit" by Alfred Cipriani, who is employed by a company which provides accident analysis reports for defendant. Although the document was captioned "Affidavit" and purported to be signed by Mr. Cipriani, the purported signature was a copy and was not notarized. At oral argument, the Court advised defendant's counsel that it could not consider Mr. Cipriani's unsworn statement. Counsel then proffered to the Court a document bearing what appeared to be an original signature of Mr. Cipriani together with an original signature on the line above the word "Notary" and a notary stamp. The Court asked counsel to explain how a document bearing a copy of Mr. Cipriani's signature and no notary stamp could have been appended to the Court's papers if Mr. Cipriani had signed the statement in front of a notary. Counsel explained that it is the practice of insurance companies for individuals such as Mr. Cipriani to sign a stack of documents which are then brought to a notary.

Based on this sequence of events, this Court declines to consider Mr. Cipriani's statement.

On its face, it is not in a form which the Court may consider on a motion to vacate a default judgment. Moreover, counsel's attempt to cure the defect only compounded the problem when he stated that Mr. Cipriani had not signed his "Affidavit" in front of a notary and that it was not the practice of his client to ensure that documents designated as affidavits are actually signed in front of a notary.

It is the duty of a notary to sign an affidavit only if the person signing the document appears before the notary, establishes his or her identity to the notary and swears before the notary to the truth of the facts in the document (see 1 NY Jur 2d Acknowledgments, Affidavits, Oaths, Notaries and Commissioners §§ 45 and 74; People v. Reiter, 273 NY 348, 349; In re Application of Fox, 225 AD 680 [2d Dept 1928]; In re Napolis, 169 AD 469, 472 [1st Dept 1915]). This is not a pro forma act; rather, the notary, "by a solemn official act, certifies to the acts and declarations of the person appearing before him, and those acts and declarations are thereby stamped with the character of evidence, tending to establish whatever those acts and declarations would establish if proved by oral testimony in a court of justice." ( Albany County Sav. Bank v. McCarty, 149 NY 71, 83).

In this case, the Court cannot be satisfied even that Mr. Cipriani appeared before the notary. Accordingly, there is no assurance that the person who signed the statement was Mr. Cipriani or that he swore to the truth of the facts in the statement. Therefore, the Court cannot rely on Mr. Cipriani's statement on defendant's motion. In the absence of a properly executed affidavit by Mr. Cipriani, defendant has failed to establish that it has a meritorious defense.

Accordingly, defendant's motion to vacate the default judgment entered against it is denied.

This constitutes the Decision and Order of the Court.