Opinion
2019–12612 Index No. 710349/16
04-19-2023
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Benny WILLIAMS, appellant, et al., defendants.
Law Offices of David M. Dore´, New York, NY, for appellant. Eckert Seamans Cherin & Mellot, LLC, White Plains, NY (Sarah J. Greenberg and Riyaz G. Bhimani of counsel), for respondent.
Law Offices of David M. Dore´, New York, NY, for appellant.
Eckert Seamans Cherin & Mellot, LLC, White Plains, NY (Sarah J. Greenberg and Riyaz G. Bhimani of counsel), for respondent.
ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Benny Williams appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), dated September 20, 2019. The order, insofar as appealed from, denied that branch of that defendant's motion which was, in effect, pursuant to CPLR 5015(a) to vacate a judgment of foreclosure and sale of the same court dated September 26, 2018, entered upon his default in appearing or answering the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On August 3, 2005, the defendant Benny Williams (hereinafter the defendant) executed a note in the sum of $255,000, which was secured by a mortgage on residential property located in South Ozone Park (hereinafter the premises). The plaintiff subsequently commenced this action against the defendant, among others, to foreclose the mortgage. According to an affidavit of service, the address of the location where the defendant was served with process was "133–19 121st Street." The defendant failed to timely appear or answer the complaint. A judgment of foreclosure and sale dated September 26, 2018, was thereafter entered upon the defendant's default.
By order to show cause dated May 14, 2019, the defendant moved, inter alia, in effect, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale. The plaintiff opposed the motion. In an order dated September 20, 2019, the Supreme Court, among other things, denied that branch of the motion. The defendant appeals.
"The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void" ( Washington Mut. Bank v. Murphy, 127 A.D.3d 1167, 1173–1174, 10 N.Y.S.3d 95 [citations omitted]; see Brownstone Capital NY, LLC v. Lindsay, 183 A.D.3d 687, 688, 123 N.Y.S.3d 677 ).
" ‘Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service’ " ( Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d 987, 988, 90 N.Y.S.3d 308, quoting Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ). "To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server's affidavit of service" ( Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d at 988, 90 N.Y.S.3d 308 ; see Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 776, 51 N.Y.S.3d 523 ). "Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing" ( Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d at 988, 90 N.Y.S.3d 308, quoting U.S. Bank, N.A. v. Tauber, 140 A.D.3d 1154, 1155, 36 N.Y.S.3d 144 ; see Deutsche Bank Natl. Trust Co. v. Stolzberg, 165 A.D.3d 624, 625, 85 N.Y.S.3d 483 ).
Here, the process server's affidavit of service constituted prima facie evidence of proper service and, thus, gave rise to a presumption of proper service (see Bank of N.Y. Mellon v. Ziangos, 194 A.D.3d 778, 779, 149 N.Y.S.3d 145 ). In an affidavit in support of his motion, inter alia, to vacate the judgment of foreclosure and sale, the defendant stated that the plaintiff effected service of process "at 113–20," and denied that he lived at that address. However, that was not the address recited in the affidavit of service. Moreover, the defendant offered no specific facts or documentary or other evidence demonstrating that he did not reside at the address where service was effected. Therefore, his affidavit was insufficient to rebut the presumption of proper service established by the affidavit of service (see Deutsche Bank Natl. Trust Co. v. Lubonty, 208 A.D.3d 142, 151, 171 N.Y.S.3d 556 ; American Home Mtge. Acceptance, Inc. v. Lubonty, 188 A.D.3d 767, 770, 136 N.Y.S.3d 130 ; Bank of N.Y. Mellon v. Lawson, 176 A.D.3d 1155, 1157, 111 N.Y.S.3d 337 ; cf. Brownstone Capital NY, LLC v. Lindsay, 183 A.D.3d at 689, 123 N.Y.S.3d 677 ; Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d at 777, 51 N.Y.S.3d 523 ; Sileo v. Victor, 104 A.D.3d 669, 670, 960 N.Y.S.2d 466 ).
To the extent the defendant argues that vacatur of the judgment of foreclosure and sale was warranted pursuant to CPLR 5015(a)(3), his contention is without merit, as he failed to establish the existence of fraud, misrepresentation, or other misconduct on the part of the plaintiff (see Community W. Bank, N.A. v. Stephen, 153 A.D.3d 899, 900, 60 N.Y.S.3d 417 ). Moreover, to the extent the defendant argues that vacatur of the judgment of foreclosure and sale was warranted pursuant to CPLR 5015(a)(1), he failed to demonstrate a reasonable excuse for his default, since the only excuse he proffered was that he was not served with process (see Citimortgage, Inc. v. Bustamante, 107 A.D.3d 752, 753, 968 N.Y.S.2d 513 ). The absence of a reasonable excuse for the default renders it unnecessary to determine whether the defendant demonstrated the existence of a potentially meritorious defense (see id. at 753, 968 N.Y.S.2d 513 ).
Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was, in effect, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale.
In light of our determination, we need not reach the defendant's remaining contention.
IANNACCI, J.P., MILLER, DOWLING and VOUTSINAS, JJ., concur.