U.S. Equities Corp. v. Haqaziz

U.S. Equities Corp. v Haqaziz (2021 NY Slip Op 51269(U)) [*1] U.S. Equities Corp. v Haqaziz 2021 NY Slip Op 51269(U) [73 Misc 3d 147(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 This opinion is uncorrected and will not be published in the printed Official Reports.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. 570172/21 U.S. Equities Corp., Plaintiff-Appellant, against Ihsan U. Haqaziz, Defendant-Respondent. Plaintiff, as limited by its brief, appeals from those portions of an order of the Civil Court of the City of New York, New York County (Dakota D. Ramseur, J.), dated February 4, 2020, which vacated the default judgment, deemed the answer filed and served and set the matter down for a pretrial conference. Per Curiam. Order (Dakota D. Ramseur, J.), dated February 4, 2020, insofar as appealed from, affirmed, without costs.Civil Court providently exercised its discretion in granting defendant's motion to vacate the default judgment and for related relief. Defendant's contention that he was not properly served with the summons and complaint established excusable default in the circumstances present (see generally GEM Invs. Am., LLC v Marquez, 180 AD3d 513 [2020]), where no affidavit of service or other proof was submitted to Civil Court on the motion to establish that the plaintiff effected proper service of process upon defendant (see Fleisher v Kaba, 78 AD3d 1118, 1119-1120 [2010]; Aloi v Firebird Frgt. Serv. Corp., 251 AD2d 608, 609 [1998]). Nor has defendant either explicitly or implicitly participated in the action, or engaged in any other conduct that would waive his jurisdictional objection (see HSBC Bank USA, N.A. v A & R Trucking Co., Inc., 66 AD3d 606, 607 [2009]). Defendant also established a meritorious defense to this action for alleged credit card debt, by submitting proof indicating that he was out of the country during the relevant period and had been the victim of identity theft. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: December 29, 2021