Pawlukiewicz v. Pawlukiewicz

Pawlukiewicz v Pawlukiewicz (2022 NY Slip Op 51259(U)) [*1] Pawlukiewicz v Pawlukiewicz 2022 NY Slip Op 51259(U) [77 Misc 3d 134(A)] Decided on December 9, 2022 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ 2019-522 Q C Kenneth J. Pawlukiewicz, Respondent, against Rosemarie K. Pawlukiewicz, Appellant. Rosemarie K. Pawlukiewicz, appellant pro se. Kenneth J. Pawlukiewicz, respondent pro se. Appeal from an order of the Civil Court of the City of New York, Queens County (Tracy A. Catapano-Fox, J.), dated December 17, 2018. The order denied defendant's motion to vacate a default judgment. ORDERED that the order is affirmed, without costs. In this small claims action, plaintiff seeks to recover the principal sum of $4,500, based on damage which defendant allegedly caused by driving on plaintiff's sidewalk. The Civil Court notified defendant, by ordinary first-class mail and by certified mail with return receipt requested, of the pendency of this small claims action and her obligation to appear in court on the date specified therein, and there is no indication in the record that the mail was returned as undeliverable. The matter was originally set down for trial on June 3, 2008. It was adjourned to July 14, 2008 and marked final as against defendant. On July 14, 2008, an inquest was held and a default judgment was entered in favor of plaintiff in the principal sum of $4,500. In December 2018, after defendant received a marshal's notice and an income execution was served on her employer, defendant moved to vacate the default judgment and to restore the action to the calendar. In her supporting affidavit, defendant said that she had received papers in [*2]her office concerning a garnishment, and stated her address to be "101 Richardson St., Brooklyn, NY 11211" —the employer's address to which the Civil Court had mailed notice of the pendency of the action in 2008. Defendant denied that she had been properly served and asserted that the court thus lacked jurisdiction. Following oral argument, her motion was denied. This appeal ensued. The Civil Court properly notified defendant of the action at her place of regular employment within the city of New York (see CCA 1803).[FN1] In small claims actions, there is a statutory presumption of notice (see CCA 1803; see also Armen v Einsidler Mgt., Inc., 73 Misc 3d 136[A], 2021 NY Slip Op 51068[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). Since there is no indication that the mail was returned to the Civil Court as undeliverable, defendant's conclusory denial of service failed to rebut the presumption that defendant received notice of the claim (see Andrade v Companion Animal Network, Inc., 64 Misc 3d 144[A], 2019 NY Slip Op 51283[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Alterman v Adelphi Academy of Brooklyn, 53 Misc 3d 152[A], 2016 NY Slip Op 51703[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in concluding that defendant had been properly served and that jurisdiction had been acquired over defendant. As defendant failed to provide a reasonable excuse for her default, the denial of defendant's motion to vacate the default judgment rendered substantial justice between the parties (see CCA 1804, 1807). In view of the foregoing, it is unnecessary to consider whether defendant sufficiently established the existence of a potentially meritorious defense to the action (see Matter of Malcome X.K. [Amber N.M.], 179 AD3d 684, 685 [2020]; U.S. Bank, N.A. v Essaghof, 178 AD3d 876, 878 [2019]). Accordingly, the order is affirmed. ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 9, 2022 Footnotes Footnote 1: Although it cannot with certainty be determined what defendant's residential address was at the time this action was commenced, in numerous court filings, defendant stated that she has a New Jersey residence (see CCA 1803).