Opinion
2017-1704 K C
04-06-2018
FOUNTAIN TERRACE OWNERS, INC., Respondent, v. Rafet BALIC, Appellant, et al., Undertenants.
Madu, Edozie & Madu, P.C. (Uche Emelumadu of counsel), for appellant. Cohen, Hurkin, Ehrenfeld, Pomerantz & Tenenbaum, LLP (Marybeth Hotaling of counsel), for respondent.
Madu, Edozie & Madu, P.C. (Uche Emelumadu of counsel), for appellant.
Cohen, Hurkin, Ehrenfeld, Pomerantz & Tenenbaum, LLP (Marybeth Hotaling of counsel), for respondent.
PRESENT: DAVID ELLIOT, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ.
ORDERED that the order is modified by deleting the provision thereof denying the branch of occupant's motion seeking to vacate the default final judgment and dismiss the petition based on a lack of personal jurisdiction; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of that branch of occupant's motion following a traverse hearing to determine whether occupant had been properly served with the notice of petition and petition.
Landlord commenced this summary proceeding pursuant to RPAPL 713 (11) to recover possession of a superintendent's apartment from occupant, a former superintendent whose employment had been terminated by landlord in February 2017. The petition describes the premises sought to be recovered as "APT. # 4 of the premises known as 735 AVENUE W, BROOKLYN, NEW YORK 11223." After occupant failed to appear or submit an answer, a default final judgment was entered against him in June 2017. Occupant thereafter moved to vacate the default final judgment and to dismiss the petition based on a lack of personal jurisdiction (see CPLR 5015 [a] [4] ) or, in the alternative, to vacate the default final judgment based on excusable default (see CPLR 5015 [a] [1] ) and restore the matter to the calendar so that he could defend the proceeding on the merits. By order dated August 24, 2017, the Civil Court denied occupant's motion.
Insofar as occupant asserted lack of personal jurisdiction as a ground for vacating the default final judgment, he did not need to demonstrate a reasonable excuse for his default or a meritorious defense to the proceeding (see Velez v. Forcelli , 125 AD3d 643, 644 [2015] ; European Am. Bank & Trust Co. v. Serota , 242 AD2d 363, 363 [1997] ; Tzifil Realty Corp. v. Temammee , 46 Misc 3d 144[A], 2015 NY Slip Op 50196[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ). As to the merits of occupant's personal jurisdiction claim, it is well established that a process server's affidavit of service constitutes prima facie evidence of proper service, and, in order to rebut this showing and raise an issue of fact necessitating a traverse hearing, the party disputing service is required to submit a sworn, nonconclusory and factually specific denial of service (see Deutsche Bank Natl. Trust Co. v. Quinones , 114 AD3d 719, 719 [2014] ; U.S. Bank, N.A. v. Arias , 85 AD3d 1014, 1015 [2011] ; Shaukat v. Wilcox , 55 Misc 3d 151[A], 2017 NY Slip Op 50762[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ). Here, landlord made a prima facie showing of proper service by submitting an affidavit of service from a process server, which affidavit provided the date and time of the service of the notice of petition and petition, and stated that copies were conspicuously affixed to the door of "APT 4" and that additional copies were mailed to occupant's residence at "APT 4" by certified and regular first class mail (see Matter of Baer v. Lipson , 194 AD2d 787, 787 [1993] ). However, occupant—by submitting evidence that he had never received any copies by regular mail and that apartment "4," to which process was allegedly affixed, was not the apartment in which he resided, which was apartment "L4"—specifically refuted the contents of the affidavit of service and raised questions of fact as to whether service was properly effectuated (see Sileo v. Victor , 104 AD3d 669, 670 [2013] ; U.S. Bank, N.A. v. Arias , 85 AD3d at 1016 ; Tzifil Realty Corp. v. Temammee , 46 Misc 3d 144[A], 2015 NY Slip Op 50196[U] ). Consequently, a traverse hearing is required to determine whether the process server had affixed a copy of the notice of petition and petition to occupant's apartment door and whether the server had, in fact, mailed a copy to occupant's residence by regular mail (see Sileo v. Victor , 104 AD3d at 670 ; U.S. Bank, N.A. v. Arias , 85 AD3d at 1016 ; Tzifil Realty Corp. v. Temammee , 46 Misc 3d 144[A], 2015 NY Slip Op 50196[U] ).
We note that, if, following the traverse hearing, it is determined that the Civil Court had personal jurisdiction over occupant, occupant would not be entitled to vacatur of the default final judgment based on excusable default (see CPLR 5015 [a] [1] ), as occupant failed to demonstrate both a reasonable excuse for his default and a potentially meritorious defense to this proceeding (see Nationstar Mtge., LLC v. McLean , 140 AD3d 1131, 1132 [2016] ; 136-76 39th Ave., LLC v. Ai Ping Wu , 55 Misc 3d 128[A], 2017 NY Slip Op 50363[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ). Consequently, we leave undisturbed so much of the order as denied the branch of occupant's motion seeking to vacate the default final judgment based upon excusable default.
Finally, with respect to occupant's challenge to the Civil Court's subject matter jurisdiction on the ground that the petition failed to contain a proper description of the premises sought to be recovered by listing the wrong apartment number, we note that such failure, if any, does not deprive the Civil Court of subject matter jurisdiction, which is conferred by statute (see Birchwood Towers # 2 Assoc. v. Schwartz , 98 AD2d 699, 700 [1983] ; 5670 58 St. Holding Corp. v. ASAP Towing Servs., Inc. , 57 Misc 3d 137[A], 2017 NY Slip Op 51302[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; 17th Holding v. Rivera , 195 Misc 2d 531, 532 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]; cf. Clarke v. Wallace Oil Co. , 284 AD2d 492, 493 [2001] ).
Although this claim is being raised for the first time on appeal, appellate review thereof is appropriate, as a court's lack of subject matter jurisdiction "may be raised at any stage of the action" (Financial Indus. Regulatory Auth., Inc. v. Fiero , 10 NY3d 12, 17 [2008] [internal quotation marks, brackets and citations omitted] ).
Accordingly, the order is modified by deleting the provision thereof denying the branch of occupant's motion seeking to vacate the default final judgment and dismiss the petition based on a lack of personal jurisdiction; as so modified, the order is affirmed and the matter is remitted to the Civil Court for a traverse hearing to determine whether occupant was properly served with the notice of petition and petition.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.