Opinion
01-10-2017
NYCTL 2012–A TRUST, et al., Plaintiffs–Respondents, v. Jack M. COLBERT, Defendant–Appellant, New York State Department of Taxation and Finance, et al., Defendants.
Gerard J. White, P.C., Glendale (Gerard J. White of counsel), for appellant. Windels Marx Lane & Mittendorf, LLP, New York (Stephanie A. LaPerle of counsel), for respondents.
Gerard J. White, P.C., Glendale (Gerard J. White of counsel), for appellant.
Windels Marx Lane & Mittendorf, LLP, New York (Stephanie A. LaPerle of counsel), for respondents.
TOM, J.P., RICHTER, SAXE, GISCHE, GESMER, JJ.
Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered July 7, 2015, granting plaintiffs' motion for a judgment of foreclosure and sale of the subject property in satisfaction of an underlying tax lien, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded to Supreme Court for a traverse hearing and further proceedings consistent with the determination rendered after such hearing.
The affidavits of plaintiffs' process server describing defendant as the person who accepted service of the summons, complaint, and notice of pendency, constituted prima facie evidence of proper service (see Grinshpun v. Borokhovich, 100 A.D.3d 551, 552, 954 N.Y.S.2d 520 [1st Dept.2012], lv. denied 21 N.Y.3d 857, 2013 WL 2436328 [2013] ; Wells Fargo Bank, NA v. Edwards, 95 A.D.3d 692, 945 N.Y.S.2d 44 [1st Dept.2012] ).
In opposition, however, defendant's affidavit sufficiently rebutted the presumption of service established by the process server because he specifically denied receipt of service insofar as his medical condition rendered him unable to accept service at the times claimed by plaintiffs. Moreover, discrepancies between defendant's stated appearance and the descriptions provided by the process server of the person he served also raised an issue of fact as to whether defendant was personally served (see NYCTL 1998–1 Trust & Bank of N.Y. v. Rabinowitz, 7 A.D.3d 459, 460, 777 N.Y.S.2d 483 [1st Dept.2004] ; compare Reem Contr. v. Altschul & Altschul, 117 A.D.3d 583, 584, 986 N.Y.S.2d 446 [1st Dept.2014] ; Grinshpun, 100 A.D.3d at 552, 954 N.Y.S.2d 520 ). In light of these factual disputes, the court erred in granting the motion for a judgment of foreclosure without first resolving the threshold issue of personal service with a traverse hearing.