Orix Financial Servs. v. Kielbasa, (2nd Cir. 2009)
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08-0042-cv
Orix Financial Servs. v. Kielbasa
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE
32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
"(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF
THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
ORDER IS CITED UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC
DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS
THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS
SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE
CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER
OF THE CASE IN WHICH THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 4th
day of March, two thousand nine.
Present:
HON. AMALYA L. KEARSE,
HON. ROBERT A. KATZMANN,
Circuit Judges,
HON. DENNY CHIN, District Judge.1 ORIX FINANCIAL SERVICES, formerly known as Orix Credit Alliance, Inc., Plaintiff-Appellee, v. No. 08-0042-cv JOSEPH F. KIELBASA, Defendant-Appellant. For Plaintiff-Appellee: WILLIAM M. STEIN , Stein & Stein, Haverstraw, NY For Defendant-Appellant: JAMES A. ENGLISH , David A. Kaminsky & Associates, P.C., New York, NY Appeal from the United States District Court for the Southern District of New York (Keenan, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the order of the district court be and hereby is AFFIRMED.
Defendant-Appellant Joseph F. Kielbasa appeals from an opinion and order of the United States District Court for the Southern District of New York (Keenan, J.), entered December 4, 2007, denying Kielbasa's motion to vacate, pursuant to Fed. R. Civ. P. 60(b)(4), the default judgment entered against him in this case. We assume the parties' familiarity with the facts and procedural history of the case.
In the court below and on appeal, Kielbasa argues, inter alia, that the default judgment is void because the plaintiff's service of process (1) did not satisfy Federal Rule of Civil Procedure 4, or (2) did not provide adequate notice under the Due Process Clause. These arguments are without merit. Service of process properly was made on C-A Credit, Kielbasa's agent for acceptance of service of process as expressly designated by contract. See Orix Fin. Servs., Inc. v.
Baker, 768 N.Y.S.2d 780, 782 (N.Y. Sup. Ct. 2003); see also Nat'l Equip. Rental v. Szukhent, 375 U.S. 311 (1964). Thereafter, plaintiff and C-A Credit transmitted, by certified and regular mail, respectively, notice of the action to Kielbasa at the address designated in the contract.
Neither plaintiff nor C-A Credit had reason to believe that the address was no longer valid or that the notice was not successfully delivered to the intended address. Given these circumstances, the notice sent by plaintiff and by C-A Credit was reasonably calculated to give notice to Kielbasa of the action and, therefore, comported with due process principles. See Miner v. Clinton County, 541 F.3d 464, 471-73 (2d Cir. 2008) (due process satisfied where notice sent by certified mail to last known address was not returned to sender); Weigner v. City of New York, 852 F.2d 646, 64950 (2d Cir. 1988).
Although Kielbasa also contends that the notice sent to him by C-A Credit was ineffective because the procedures outlined in New York Civil Practice Law and Rule 318 were not followed, that contention lacks merit because those procedures are "optional" and "not the only way of appointing an agent for receipt of process." Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 272 (1980); see, e.g., Orix Credit Alliance, Inc. v. Fan Sy Prods., Inc., 625 N.Y.S.2d 910, 910 (App. Div. 1995) ("Service upon a designated agent, pursuant to the terms of [a] lease and guaranties, clearly suffices.").
We have considered, and are not persuaded by, Kielbasa's remaining arguments.
Accordingly, the order denying the motion to vacate the default judgment is hereby AFFIRMED.
FOR THE COURT: CATHERINE O'HAGAN WOLFE, CLERK By:
1 The Honorable Denny Chin, United States District Judge for the Southern District of New York, sitting by designation.
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