Opinion
2016–800 RI C
01-26-2018
DAIMLER TRUST, Respondent, v. Germaine FERRO and Louis Ferro, Appellants.
The Magnotti Law Firm PLLC (Joseph E. Magnotti, Esq.), for appellants. Rubin & Rothman, LLC (Eric S. Pillischer, Esq.), for respondent.
The Magnotti Law Firm PLLC (Joseph E. Magnotti, Esq.), for appellants.
Rubin & Rothman, LLC (Eric S. Pillischer, Esq.), for respondent.
PRESENT: DAVID ELLIOT, J.P., MICHAEL L. PESCE, THOMAS P. ALIOTTA, JJ
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this action to recover the principal sum of $18,630.75 for breach of a vehicle lease agreement. According to the affidavit of service, copies of the summons and complaint were served on November 20, 2010 at 1:41 p.m. by handing them to a relative of defendants, "John" Ferro, at 46 Palmieri Lane, a private house in Staten Island. The relative was described in the affidavit of service as a white male with black hair, about 21 years old, approximately 5'8? and 160 pounds. The process server averred that she had spoken with the relative and that he had confirmed defendants' nonmilitary status. The process server further stated that, on November 23, 2010, she had also mailed each defendant a copy of the summons and complaint. Defendants failed to appear or answer, and a default judgment was entered against them in the principal sum of $18,630.75 on February 18, 2011. Approximately 4½ years later, defendants moved to vacate the default judgment on the ground of improper service. The Civil Court, without ordering a traverse hearing, denied the motion.
A process server's affidavit of service, attesting to service upon a person of "suitable age and discretion" ( CPLR 308 [2 ] ), constitutes prima facie evidence of proper service (see Associates First Capital Corp. v Wiggins , 75 AD3d 614 [2010] ; Scarano v Scarano , 63 AD3d 716 [2009] ). Where a defendant fails to swear to specific facts to rebut the statements in the process server's affidavit, the defendant's motion to vacate a default judgment based on improper service may be denied without a hearing (see Associates First Capital Corp. v Wiggins , 75 AD3d at 614 ; City of New York v Miller , 72 AD3d 726 [2010] ; Scarano v Scarano , 63 AD3d 716 ; Simonds v Grobman , 277 AD2d 369, 370 [2000] ).
To the extent that defendants claimed improper service, and thus a lack of personal jurisdiction (see CPLR 5015 [a] [4] ), their conclusory denial of service at 46 Palmieri Lane, Staten Island did not rebut the prima facie proof of proper service created by the process server's affidavit. Defendants admitted that they reside at 46 Palmieri Lane, and neither defendant averred that he or she does not have a relative who fits the description set forth in the affidavits of service or that there was no relative visiting their home at the time of service. Consequently, the Civil Court properly denied, without a traverse hearing, defendants' motion to vacate the default judgment based on a lack of improper service (see City of New York v Miller , 72 AD3d 726 ; Scarano v Scarano , 63 AD3d 716 ; Mortgage Elec. Registration Sys., Inc. v Schotter , 50 AD3d 983 [2008] ; 425 E. 26th St. Owners Corp. v Beaton , 50 AD3d 845 [2008] ; Simonds v Grobman , 277 AD2d 369 ).
To the extent that defendants' motion was made pursuant to CPLR 317, defendants failed to demonstrate that they did not personally receive notice of the summons and complaint in time to defend and that they had a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co. , 67 NY2d 138 [1986] ; Chichester v Alal–Amin Grocery & Halal Meat , 100 AD3d 820 [2012] ).
Accordingly, the order is affirmed.
ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.