In Cadle Co. v. Nunez , after some 18 years, the Appellate Division, First Department, reunited a bank with its money.
In 1989, Danny Nunez took out a loan from Chemical Bank, listing his address on the application as 463 40th St., Brooklyn, and stating that he had lived at that location for 20 years. Five years later, Chemical started a case to collect on the note, and a summons and complaint were served on Nunez -- at the address given on his loan application -- by leaving a copy of the pleadings with Nunez's aunt, Lidia Acosta. When Nunez failed to respond, a default judgment in the amount of $47,543.64 was awarded to Chemical, which later assigned that judgment to The Cadle Company.
Cadle filed the unsatisfied judgment within the Kings County Supreme Court in 1999, where it became a lien on any real property owned by Nunez in the County.
In May 2006, as collection efforts intensified, Nunez moved to vacate the default judgment on the grounds of improper service.
In a traverse hearing held in November of 2006, the Supreme Court learned that Mr. Nunez had been incarcerated from 1992 until 2005 and thus had been in prison at the time that service was made. Cadle was unaware of Mr. Nunez's stint in jail, nor would have been able to discover that fact upon inquiry since he had been registered with the Department of Correctional Services as "Daniel Acosta," rather than Daniel Nunez. Cadle's process server couldn't independently remember the events of March 21, 1994, the day on which service was effected, but testified that his affidavit of service reflected that he had served a brown-haired woman named "Lydia Scosta," a relative of Nunez's at 463 40th St.
While a law -- CPLR § 308 (2) -- provides that service of a summons and complaint may be made to "a person of suitable age and discretion" at a defendant's residence, Nunez claimed that this requirement had not been satisfied and produced four witnesses to buttress his position.
Nunez's aunt, Lidia Acosta, testified that she had always been a blonde and that she never received any papers on Nunez's behalf. Nunez's three remaining witnesses -- his wife, brother and a business partner -- all testified that, prior to his incarceration, Nunez had lived at residences other than 463 40th St. Disregarding a passport photo which revealed a very brunette Ms. Acosta, and that Nunez's remaining witnesses were decidedly interested parties, the Kings County Supreme Court opted to vacate the 1994 judgment.
On appeal, the Appellate Division, First Department, found that the judgment should not have been disturbed since service had been properly effected at Nunez's last known address as provided on his loan application, that neither Cadle nor its predecessor had been notified of an address change -- or that Nunez had been in prison -- and that the testimony offered on his behalf was "rife with contradictions and inconsistencies."
Clearly, there's was no rockin' this Cadle!
You can read the case it its entirety at: Cadle Co. v. Nunez