Opinion
2014-2007 K C
12-14-2015
Capital Equity Management, LLC, Appellant, v. Mordechai Weisz, Respondent.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), dated August 12, 2013. The order granted defendant's motion to vacate a default judgment and dismiss the complaint.
ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment and dismiss the complaint is denied.
In this action to recover unpaid bills in a consumer credit transaction, the affidavit of service of process indicates that the summons and complaint were delivered to defendant's wife, who wore a head covering, at a residence in Brooklyn, New York. The process server also mailed copies of the summons and complaint to defendant at the same address (see CPLR 308 [2]). Defendant failed to appear or answer and, on May 15, 2007, a default judgment was entered against defendant in the sum of $15,155.34.
In June 2013, defendant moved to vacate the default judgment and dismiss the complaint. In an affidavit in support of the motion, defendant argued, among other things, that he had never received the summons and complaint and, therefore, that the default judgment should be vacated and the complaint dismissed pursuant to CPLR 5015 (a) (4) for lack of personal jurisdiction or, in the alternative, the default judgment should be vacated pursuant to CPLR 5015 (a) (1). In his affidavit in support of his motion, defendant merely averred that the summons and complaint had not been properly served and that he had never received these documents. Plaintiff opposed the motion, arguing, among other things, that defendant's conclusory allegations were insufficient to rebut the process server's affidavit, and that the branch of defendant's motion seeking vacatur pursuant to CPLR 5015 (a) (1) was untimely. Thereafter, in court, defendant was sworn in and stated that his wife had been at work when the process had allegedly been served, and that his wife did not wear a head covering. Plaintiff's attorney objected to defendant's statements, since they were not alleged in defendant's affidavit in support of his motion. The court set the matter down for a traverse hearing, at which the process server failed to appear. By order dated August 12, 2013, the Civil Court granted the branch of defendant's motion seeking to vacate the default judgment and dismiss the complaint pursuant to CPLR 5015 (a) (4). This appeal by plaintiff ensued.
When a defendant moves to vacate a default judgment pursuant to CPLR 5015 (a) (1) and (a) (4), the court is required to resolve the CPLR 5015 (a) (4) jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur pursuant to CPLR 5015 (a) (1) ( see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [2013]). With respect to the branch of defendant's motion seeking vacatur pursuant to CPLR 5015 (a) (4), generally, a process server's affidavit of service constitutes prima facie proof of proper service ( see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]; Parker v Top Homes, Inc., 58 AD3d 817, 818 [2009]; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846 [2008]; Sando Realty Corp. v Aris, 209 AD2d 682 [1991]). In order to rebut this prima facie showing and raise an issue of fact necessitating a traverse hearing, a defendant is required to submit a sworn, nonconclusory, factually specific, denial of service ( see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d at 719 [the "respondent's bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in th[e] affidavit of service"]). Moreover, it is well settled that new assertions raised for the first time in reply are not properly considered ( see Alto v Firebaugh Realty Corp., N.V., 33 AD3d 738, 739 [2006]; Jain v New York City Tr. Auth., 27 AD3d 273 [2006]; Hoyte v Epstein, 12 AD3d 487, 488 [2004]).
Upon a review of the record, we find that the conclusory sworn allegations contained in defendant's affidavit in support of his motion to vacate the default judgment were insufficient to rebut the prima facie proof of proper service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d at 719). Therefore, the Civil Court improvidently exercised its discretion when it considered defendant's sworn oral allegations (see Jain v New York City Tr. Auth., 27 AD3d 273) and found that they raised an issue of fact necessitating a traverse hearing (see e.g. Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d at 719). Consequently, based solely on the motion papers, the court should have denied the branch of defendant's motion seeking to vacate the default judgment pursuant to CPLR 5015 (a) (4). With respect to the branch of defendant's motion seeking vacatur pursuant to CPLR 5015 (a) (1), we find that defendant failed to demonstrate both a reasonable excuse for his default and a meritorious defense to the action.
Accordingly, the order is reversed and defendant's motion to vacate the default judgment and dismiss the complaint is denied.
Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: December 14, 2015