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Diamond Finance Company, Inc v. Diana Vasquez

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


January 14, 2013

DIAMOND FINANCE COMPANY, INC., RESPONDENT, --
v.
DIANA VASQUEZ, APPELLANT, -AND- FELIX VASQUEZ AND LILLIAN ACOSTA,
DEFENDANTS.

Appeals from orders of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered March 22, 2011 and June 8, 2011, respectively.

Diamond Fin. Co., Inc. v Vasquez

Decided on January 14, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order entered March 22, 2011, insofar as appealed from as limited by the brief, denied a motion by defendant Diana Vasquez to vacate so much of a default judgment as had been entered against her. The order entered June 8, 2011 denied a motion by defendant Diana Vasquez, in effect, for leave to renew her prior motion.

ORDERED that the orders are affirmed, without costs.

In 2001, plaintiff instituted this consumer credit action against defendants Diana Vasquez, Felix Vasquez, and Lillian Acosta, seeking to recover the principal sum of $4,298.18 on an automobile loan. A default judgment was entered against all the defendants in 2001. The judgment was vacated in 2002, upon the motion of defendant Acosta. Subsequently, on June 23, 2004, judgment was entered against defendant Acosta following plaintiff's unopposed motion for summary judgment against that defendant, and the default judgment was reinstated against defendants Felix Vasquez and Diana Vasquez.

On March 8, 2011, defendant Diana Vasquez (Vasquez), appearing as Diana Morales, moved to vacate so much of the judgment as was against her, and requested that a proposed answer she had annexed to her application be deemed timely filed. In support of her application, Vasquez, who at that time was self-represented, among other things challenged, in a conclusory manner, the court's jurisdiction to render a default judgment against her, based on a claim of improper service. Plaintiff opposed Vasquez's motion. Vasquez's motion was denied by order entered March 22, 2011.

Vasquez then apparently retained counsel, who filed a notice of appeal from the March 22, 2011 order and also moved to vacate the default judgment. In this motion, Vasquez claimed that plaintiff had failed to comply with statutory requirements for filing an affidavit of substituted service, and therefore that her time to answer the complaint had not yet run when the Civil Court entered judgment against her. Vasquez asserted that her review, and her attorney's review, of the court record provided the basis for this contention. By order entered June 8, 2011, the Civil Court (Robin Kelly Sheares, J.) denied Vasquez's motion as "duplicative."

We note at the outset that Vasquez's first motion was properly denied as her conclusory challenge to service was insufficient to create an issue of fact requiring a traverse (see e.g. Caba v Rai, 63 AD3d 578 [2009]).

Vasquez failed to identify her subsequent motion to vacate so much of the default judgment as was entered against her as either a motion for leave to renew (CPLR 2221 [e] [1]) or a motion for leave to reargue (CPLR 2221 [d] [1]) her prior motion, and, in its order entered June 8, 2011, the Civil Court denied the motion as duplicative. Since Vasquez relied on "new facts" in her second motion which had not previously been offered, we conclude that the second motion was, in effect, a motion for leave to renew Vasquez's prior motion. However, Vasquez did not offer a reasonable justification for failing to present the "new facts" in her initial motion (Sobin v Tylutki, 59 AD3d 701, 702 [2009]). In any event, the record demonstrates that there was no basis to vacate so much of the default judgment as was entered against Vasquez based on the "new facts."

The record shows that after service was made on Vasquez by delivery to a person of suitable age and discretion on June 25, 2001, followed by a mailing on June 26, 2001, the original affidavit of substituted service was stapled to the summons and verified complaint and was filed on July 2, 2001, when plaintiff purchased an index number. This filing completed service upon Vasquez (see CCA 410 [b]). We, therefore, conclude that so much of the default judgment as was against Vasquez was properly rendered. Since Vasquez failed to demonstrate any ground for vacatur of so much of the default judgment as was against her, we find no basis to disturb the Civil Court's denial of Vasquez's second motion.

We do not consider those legal arguments Vasquez has made for the first time on appeal (see e.g. LMT Capital Mgt., LLC v Gerardi, 97 AD3d 546 [2012]; Washington Mut. Bank v Valencia, 92 AD3d 774, 775 [2012]), or factual assertions made by Vasquez for the first time on appeal which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the orders are affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.

Decision Date: January 14, 2013

20130114

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