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Eva Stern 45, LLC v. Punnett

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
May 1, 2015
2015 N.Y. Slip Op. 50672 (N.Y. App. Term 2015)

Opinion

2012-926 K C

05-01-2015

Eva Stern 45, LLC, Appellant, v. Carlos Punnett, Respondent, -and- CONNIE RAMOS, Defendant.


PRESENT: : , WESTON and ALIOTTA, JJ.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 15, 2012. The order granted defendant Carlos Punnett's motion to vacate so much of a default judgment as was entered against him.

ORDERED that the order is reversed, without costs, and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of defendant Carlos Punnett's motion to vacate so much of the default judgment as was entered against him.

In this action to recover the principal sum of $7,140 for rent arrears and attorney's fees, neither defendant appeared or answered. The Civil Court entered a default judgment dated November 8, 1999 awarding plaintiff the total sum of $6,288.76 as against both defendants. Thereafter, Carlos Punnett (defendant) moved to vacate the default judgment insofar as entered against him, asserting that service, pursuant to CPLR 308 (2), to a person of suitable age and discretion allegedly at defendant's dwelling house or usual place of abode, had been made at the wrong address, as defendant had not resided there at any time. In an order entered March 15, 2012, the Civil Court granted defendant's motion.

Where a defendant asserts a lack of personal jurisdiction as the ground for vacating a default judgment, the defendant need not demonstrate a reasonable excuse for the default or a meritorious defense (see European Am. Bank & Trust Co. v Serota, 242 AD2d 363, 363-364 [1997]; Laurenzano v Laurenzano, 222 AD2d 560 [1995]). A process server's affidavit of service generally constitutes prima facie evidence of proper service (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074 [2010]; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589 [2009]). However, where, as here, there is a sworn denial of receipt of process because service pursuant to CPLR 308 (2) was made at an address where the defendant claims to have never resided, the affidavit of service is rebutted, and a hearing must be held, at which the plaintiff has the burden of establishing jurisdiction by a preponderance of the evidence (see Wells Fargo Bank, NA v Chaplin, 65 AD3d at 589; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344 [2003]). Plaintiff's remaining contentions are without merit.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of defendant Carlos Punnett's motion to vacate so much of the default judgment as was entered against him.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: May 01, 2015


Summaries of

Eva Stern 45, LLC v. Punnett

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
May 1, 2015
2015 N.Y. Slip Op. 50672 (N.Y. App. Term 2015)
Case details for

Eva Stern 45, LLC v. Punnett

Case Details

Full title:Eva Stern 45, LLC, Appellant, v. Carlos Punnett, Respondent, -and- CONNIE…

Court:SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: May 1, 2015

Citations

2015 N.Y. Slip Op. 50672 (N.Y. App. Term 2015)
16 N.Y.S.3d 792