Opinion
2020–05165 Index No. 8199/10
06-14-2023
Tijuan AIKENS, respondent, v. Valentina KOUCHNEROVA, et al., appellants.
Solomos & Storms, PLLC, Astoria, NY (Derrick Storms of counsel), for appellants. Kirschenbaum & Phillips, P.C., Farmingdale, NY (James P. Scully of counsel), for respondent.
Solomos & Storms, PLLC, Astoria, NY (Derrick Storms of counsel), for appellants.
Kirschenbaum & Phillips, P.C., Farmingdale, NY (James P. Scully of counsel), for respondent.
ROBERT J. MILLER, J.P., LINDA CHRISTOPHER, BARRY E. WARHIT, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated August 6, 2019. The order denied the defendants’ motion, inter alia, in effect, pursuant to CPLR 5015(a)(4) to vacate a judgment of the same court dated January 15, 2013, entered upon their failure to appear or answer the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine whether the defendants were properly served with process, and for a new determination thereafter of the defendants’ motion, inter alia, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.
On December 22, 2008, the plaintiff allegedly was injured when she slipped and fell at premises owed by the defendants. In April 2010, the plaintiff commenced this action to recover damages for personal injuries. The defendants failed to answer the complaint or otherwise appear in the action. In an order dated June 6, 2011, the Supreme Court granted the plaintiff's unopposed motion for leave to enter a default judgment. Thereafter, an inquest was held on the issue of damages, and on January 15, 2013, a judgment was issued in favor of the plaintiff and against the defendants in the principal sum of $100,000.
The defendants subsequently moved, inter alia, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. In an order dated August 6, 2019, the Supreme Court denied the motion. The defendants appeal.
"Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served" ( Wachovia Bank, N.A. v. Greenberg, 138 A.D.3d 984, 985, 31 N.Y.S.3d 110 ; see Deutsche Bank Natl. Trust Co. v. Simpson, 208 A.D.3d 1305, 1307, 175 N.Y.S.3d 312 ). Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of service (see Deutsche Bank Natl. Trust Co. v. Simpson, 208 A.D.3d at 1307, 175 N.Y.S.3d 312 ; HSBC Bank USA, N.A. v. Archibong, 157 A.D.3d 662, 663, 66 N.Y.S.3d 625 ; Deutsche Bank Natl. Trust Co. v. DaCosta, 97 A.D.3d 630, 631, 949 N.Y.S.2d 393 ). "However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit, and necessitates an evidentiary hearing" ( Deutsche Bank Natl. Trust Co. v. DaCosta, 97 A.D.3d at 631, 949 N.Y.S.2d 393 ; see HSBC Bank USA, N.A. v. Archibong, 157 A.D.3d at 663, 66 N.Y.S.3d 625 ). "If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue" ( Rosemark Contrs., Inc. v. Ness, 149 A.D.3d 1115, 1116, 53 N.Y.S.3d 188 ; see Deutsche Bank Natl. Trust Co. v. Simpson, 208 A.D.3d at 1307, 175 N.Y.S.3d 312 ; HSBC Bank USA, N.A. v. Archibong, 157 A.D.3d at 663, 66 N.Y.S.3d 625 ).
Here, the process servers’ affidavits of service constituted prima facie evidence of valid service upon the defendants at the subject New York and Florida properties (see Deutsche Bank Natl. Trust Co. v. Lubonty, 208 A.D.3d 142, 151, 171 N.Y.S.3d 556 ; Deutsche Bank Natl. Trust Co. v. Stolzberg, 165 A.D.3d 624, 625, 85 N.Y.S.3d 483 ). However, since the defendants’ sworn denial of receipt of process at both properties contained specific facts to rebut the statements in the process servers’ affidavits, the presumption of proper service was rebutted and an evidentiary hearing was required (see Deutsche Bank Natl. Trust Co. v. Simpson, 208 A.D.3d at 1307, 175 N.Y.S.3d 312 ; PennyMac Corp. v. Barbosa, 189 A.D.3d 863, 137 N.Y.S.3d 434 ). Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing to determine whether the defendants were properly served with process at both the New York and Florida properties, and for a new determination thereafter of the defendants’ motion, inter alia, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.
The parties’ remaining contentions are not properly before this Court.
MILLER, J.P., CHRISTOPHER, WARHIT and VOUTSINAS, JJ., concur.