Opinion
2017–08520 Index No. 6333/12
03-13-2019
BOARD OF MANAGERS OF OCEANA CONDOMINIUM NO. TWO, Appellant, v. Helen MEDIANIK, Respondent, et al., Defendants.
Korenblit & Vasserman, PLLC, Brooklyn, N.Y. (Irine Korenblit of counsel), for appellant. Rosenberg Fortuna & Laitman, LLP, Garden City, N.Y. (Anthony R. Filosa of counsel), for respondent.
Korenblit & Vasserman, PLLC, Brooklyn, N.Y. (Irine Korenblit of counsel), for appellant.
Rosenberg Fortuna & Laitman, LLP, Garden City, N.Y. (Anthony R. Filosa of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whether the defendant Helen Medianik was properly served pursuant to CPLR 308(2), and for a new determination thereafter of her motion to vacate the judgment of foreclosure and sale.
On March 22, 2012, the plaintiff commenced this action to foreclose, for nonpayment of common charges, a lien it held upon a condominium unit owned by the defendant Helen Medianik (hereinafter the defendant). According to the affidavit of service, the defendant was served with copies of the summons and complaint at her place of residence, the liened premises, by delivery of the summons and complaint upon a person of suitable age and discretion, and by the subsequent mailing of an additional copy of the summons and complaint to the same address. The defendant neither answered the complaint nor appeared in this action.
Upon the defendant's default, the Supreme Court entered a judgment of foreclosure and sale dated May 13, 2014. By order to show cause dated July 27, 2016, the defendant moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale, on the ground that she was never served with process in this action. The court granted the defendant's motion without conducting a hearing. The plaintiff appeals.
"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" ( HSBC Bank USA, N.A. v. Whitter , 159 A.D.3d 942, 945, 74 N.Y.S.3d 285 ; see Deutsche Bank Natl. Trust Co. v. O'King , 148 A.D.3d 776, 776, 51 N.Y.S.3d 523 ; Machovec v. Svoboda , 120 A.D.3d 772, 773, 992 N.Y.S.2d 279 ). "While 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 process server's affidavit and necessitates an evidentiary hearing" ( Wachovia Bank, N.A. v. Greenberg , 138 A.D.3d 984, 985, 31 N.Y.S.3d 110 [citations omitted]; see Engel v. Boymelgreen , 80 A.D.3d 653, 915 N.Y.S.2d 596 ; Associates First Capital Corp. v. Wiggins , 75 A.D.3d 614, 904 N.Y.S.2d 668 ; City of New York v. Miller , 72 A.D.3d 726, 898 N.Y.S.2d 643 ).
Although the documentary evidence submitted by the defendant was inconclusive, she nevertheless rebutted the presumption of valid service arising from the process server's affidavit by the submission of her specific, factually detailed, sworn affidavit denying that the liened premises was her actual dwelling place or usual place of abode on the date of service (see Kasowitz, Benson, Torres & Friedman, LLP v. Cao , 105 A.D.3d 521, 521, 963 N.Y.S.2d 199 ; Goralski v. Nadzan , 89 A.D.3d 801, 801–802, 932 N.Y.S.2d 376 ; U.S. Bank, N.A. v. Arias , 85 A.D.3d 1014, 1016, 927 N.Y.S.2d 362 ). However, since the evidence submitted was not dispositive of the issue of whether service was proper under CPLR 308(2), the Supreme Court should not have determined the defendant's motion without first conducting a hearing (see U.S. Bank N.A. v. Ramos , 153 A.D.3d 882, 884–885, 60 N.Y.S.3d 345 ; Sileo v. Victor , 104 A.D.3d 669, 670, 960 N.Y.S.2d 466 ; Dime Sav. Bank of N.Y. v. Steinman , 206 A.D.2d 404, 405, 613 N.Y.S.2d 945 ). Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing to determine whether the defendant was properly served, and thereafter a new determination of the defendant's motion.
MASTRO, J.P., BALKIN, LASALLE and CONNOLLY, JJ., concur.