Opinion
No. 2022-656 K C
04-14-2023
4720 Avenue, Inc., Respondent, v. Cianni Smith, Appellant, John Doe, Undertenant.
Charles H. Small, for appellant. Steve Okenwa, P.C. (Steve Okenwa of counsel), for respondent.
Unpublished Opinion
Charles H. Small, for appellant.
Steve Okenwa, P.C. (Steve Okenwa of counsel), for respondent.
PRESENT:: CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, LOURDES M. VENTURA, JJ
Appeals from orders of the Civil Court of the City of New York, Kings County, entered March 2, 2022 (Rupert V. Barry, J.) and March 11, 2022 (Betty Lugo, J.). The order entered March 2, 2022 denied occupant's motion to vacate a final judgment entered on October 4, 2021 upon her failure to appear, restore her to possession and dismiss the petition in a squatter summary proceeding. The order entered March 11, 2022, insofar as appealed from, denied occupant's separate motion to vacate the default final judgment on the grounds of lack of personal jurisdiction or excusable default, join the new tenants in possession, restore occupant to possession and dismiss the petition.
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further, ORDERED that the order entered March 11, 2022, insofar as appealed from, is modified by vacating so much thereof as denied the branches of occupant's second motion seeking to vacate the default final judgment and dismiss the petition based on a lack of personal jurisdiction; as so modified, the order, insofar as appealed from, is affirmed, without costs, and those branches of the motion are remitted to the Civil Court for a new determination thereof following a traverse hearing to determine whether occupant was properly served with the notice of petition and petition; and it is further, ORDERED that the appeal from the March 2, 2022 order is dismissed as academic.
In this action to recover possession of a storefront on the basis of squatting (see RPAPL 713 [3]), the affidavit of service alleged that the notice of petition and petition were served on February 2, 2021 at 8:33 p.m. "by delivering same personally to the respondents, Jane and John Doe, at the storefront located at 4720 Avenue D, Brooklyn, NY 11202." The affidavit of service further alleged that, "[u]pon inquiry," the recipient "refused to provide her name, but however, acknowledged to me that she was the sole owner of the eye-brow business inside the storefront."
On October 4, 2021, the Civil Court entered a default final judgment against occupant, who was substituted for Jane Doe at inquest, upon her failure to appear. On November 29, 2021, occupant moved to vacate the default final judgment, to be restored to possession and to dismiss the petition, arguing, among other things, that she was not served with the notice of petition and petition, and that she has a potentially meritorious defense to the proceeding. Occupant alleged in a sworn affidavit that the process server's assertion of personal service on February 2, 2021 was false as the storefront was not open on that date, a process server could not access the storefront as no one was there, and the security gate was down until the store opened on February 12, 2021. Petitioner asserted in opposition, among other things, that a new tenant was in possession of the subject premises whom occupant failed to join. While that motion was pending, occupant moved in December of 2021 to vacate the default final judgment, join the new tenants in possession, restore occupant to possession and dismiss the petition on the same grounds as the previous motion. The Civil Court denied the first motion by order (Rupert V. Barry, J.) entered March 2, 2022 and the second motion by order (Betty Lugo, J.) entered March 11, 2022, in both instances finding that occupant had not demonstrated that she had a reasonable excuse for her default or a potentially meritorious defense to the proceeding. Occupant appeals from both orders.
Insofar as occupant asserted lack of personal jurisdiction as a ground for vacating the default final judgment, she did not need to demonstrate a reasonable excuse for her default or a meritorious defense to the proceeding (see Velez v Forcelli, 125 A.D.3d 643, 644 [2015]; European Am. Bank & Trust Co. v Serota, 242 A.D.2d 363, 363 [1997]; Tzifil Realty Corp. v Temammee, 46 Misc.3d 144 [A], 2015 NY Slip Op 50196[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). It is well established that a process server's affidavit attesting to proper delivery constitutes prima facie evidence of proper service (see Federal Natl. Mtge. Assn. v Castoldi, 187 A.D.3d 988 [2020]; Mizerek v Rosenfeld, 162 A.D.3d 1005 [2018]). However, where, as here, an occupant's sworn statement denying receipt of service contains specific facts to rebut the process server's affidavit, a traverse hearing is required to determine whether service of process was properly effectuated (see Rosemark Contrs., Inc. v Ness, 149 A.D.3d 1115, 1116 [2017]; Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719 [2014]; Xaverian High Sch. v Carmona, 58 Misc.3d 152 [A], 2018 NY Slip Op 50117[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). If a defendant can demonstrate a lack of personal jurisdiction, a default judgment entered against such defendant must be vacated (see CPLR 5015 [a] [4]; Velez v Forcelli, 125 A.D.3d 643, 644 [2015]; Hossain v Fab Cab Corp., 57 A.D.3d 484 [2008]). Thus, so much of the March 11, 2022 order as denied the branches of occupant's second motion seeking to vacate the default final judgment and dismiss the petition on the ground of lack of personal jurisdiction must be vacated and those branches of the motion remitted to the Civil Court for a new determination, following a traverse hearing.
We note that if, following the traverse hearing, it is determined that the Civil Court had personal jurisdiction over occupant, occupant would not be entitled to vacatur of the default final judgment based on excusable default (see CPLR 5015 [a] [1]), as occupant has failed to demonstrate both a reasonable excuse for her default and a potentially meritorious defense to this proceeding (see Nationstar Mtge., LLC v McLean, 140 A.D.3d 1131, 1132 [2016]; 136-76 39th Ave., LLC v Ai Ping Wu, 55 Misc.3d 128 [A], 2017 NY Slip Op 50363[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Consequently, we leave undisturbed so much of the March 11, 2022 order as denied the branch of occupant's second motion seeking to vacate the default final judgment based upon excusable default.
Furthermore, even if, after the traverse hearing, the Civil Court grants the branches of occupant's second motion seeking to vacate the default final judgment and dismiss the petition for lack of personal jurisdiction, she is not entitled to restoration. Contrary to occupant's claim that she is a tenant, not a squatter, the record demonstrates that the lease she entered into was not with petitioner, a corporation that has the sole authority to lease the subject premises, but with a person, in her individual capacity, who lacked such authority. Under the circumstances, restoration would be futile (see Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 A.D.2d 415 [1999]; Bernstein v Rozenbaum, 20 Misc.3d 138 [A], 2008 NY Slip Op 51558[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), and, thus, we leave undisturbed so much of the March 11, 2022 order as implicitly denied the branches of occupant's motion seeking to be restored to possession and to join the new tenants in possession.
In view of the foregoing, the appeal from the March 2, 2022 order is dismissed as academic.
Accordingly, the order entered March 11, 2022, insofar as appealed from, is modified by vacating so much thereof as denied the branches of occupant's second motion seeking to vacate the default final judgment and dismiss the petition based on a lack of personal jurisdiction, and those branches of the motion are remitted to the Civil Court for a new determination thereof following a traverse hearing to determine whether occupant was properly served with the notice of petition and petition.
BUGGS, J.P., OTTLEY and VENTURA, JJ., concur.