Full title: HICKSVILLE MACHINE WORKS CORP., Plaintiff, v. TWO BROTHERS SCRAP METAL…
Court: SUPREME COURT OF THE STATE OF NEW YORK TRIAL/IAS PART 32 NASSAU COUNTY
Date published: Oct 5, 2011
Facts
Miguel Pumagualle is suing the plaintiff for a default judgment and dismissal of the plaintiff’s complaint. Pumagualle argues that he never received a summons and complaint from the plaintiff and was never personally served. He later discovered that court papers were being mailed to an address he knew no longer lived at. Pumagualle claims he was never part of the conversion and/or trespass act, served time as a driver for defendants Marlon Pumagualle and Nelson Delgado, and never trespassed.
The plaintiff opposes the motion, arguing that it is “replete with bald lies and fabrications, which deception should not be countenanced by this Court.” The plaintiff submits that Pumagualle was served with the Summons with Notice on July 26, 2010, and served and filed a Notice of Appearance. Pumagualle had until September 25, 2010, to serve a Verified Answer, but never answered it. The plaintiff served a Motion for Default Judgment on Pumagualle on October 5, 2010, and submitted a purported non-notarized Affidavit in opposition to the motion.
The plaintiff argues that Pumagualle has failed to satisfy either prong of the test for vacating his default as he has failed to show that his default is excusable and has failed to establish a meritorious defense.
Issue
Decision
When viewing the moving papers in their best light, the Court finds that defendant Miguel Pumagualle failed to demonstrate a reasonable excuse for the default and failed to demonstrate a meritorious cause of action. The Court stands by its original determination in its March 11, 2011 Decision and Order when it stated, “[t]he Court finds that plaintiff has proven jurisdiction over defendants Delgado, Marlon Pumagualle and Miguel Pumagualle by annexing copies of the affidavits of service of the Summons With Notice upon defendants Delgado, Marlon Pumagualle and Miguel Pumagualle and an affidavit of service of the Verified Complaint upon defendant Miguel Pumagualle.” Said Decision also stated, “[i]n his Affidavit in Opposition, which is lacking the requisite notarization, defendant Miguel Pumagualle argues that plaintiffs motion for a default judgment should be denied because ‘a) The amount of stolen goods have been changed by the Plaintiff in different occasions (sic)during the past year. Their method to keep track of material doesn’t seem to be accurate, b) I, Miguel Pumagualle, have never been inside the Plaintiff company’ (sic) premises. Therefore, a video of me inside the company can’t exist, c) I, Miguel Pumagualle, was not an employee of Hicksville Machine Works Corp. I didn’t acknowledge that these materials were parts of the United States government, d) My only role in this unlawful act was to drive from point A to point B. I, Miguel Pumagualle, didn’t trespass into Plaintiff’s property to load material. Also, I was not the one negotiating with Two Brother (sic) Scrap Metal, Inc. I was not part of the conversion process, e) Restitution payments are being made, at the rate of $200.00 a month for a total amount of $15,677.00 to Hicksville Machine Works Corp.’ The Court finds that defendant Miguel Pumagualle’s Affidavit in Opposition has failed to allege facts sufficient to defeat the instant motion for a default judgment. Said Affidavit in Opposition fails to demonstrate an excusable default or the existence of a meritorious defense.”
Accordingly, defendant Miguel Pumagualle’s motion, under CPLR § 5015(a), for an order vacating the Decision of this Court granting plaintiff a default judgment and, upon vacatur, dismissing plaintiff’s Complaint or, in the alternative, permitting the instant action to proceed on the merits is hereby DENIED.
This constitutes the Decision and Order of this Court.