Opinion
2021-07299 Index No. 706633/19
12-13-2023
Beulah Garrick, respondent, v. Chicalena Charles, et al., defendants
Villanti Law Group PLLC, Brooklyn, NY (Christopher Villanti of counsel), for appellants. Leah Bloom, et al., appellants.
Villanti Law Group PLLC, Brooklyn, NY (Christopher Villanti of counsel), for appellants.
Leah Bloom, et al., appellants.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, HELEN VOUTSINAS, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for fraud and unjust enrichment, the defendants Leah Bloom and Kodosh Holdings, LLC, appeal from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered October 8, 2021. The order, insofar as appealed from, denied those branches of those defendants' cross-motion which were pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Leah Bloom for lack of personal jurisdiction, for a hearing to determine the validity of service of process upon that defendant, or, in the alternative, pursuant to CPLR 317 and 5015(a) to vacate their default in appearing or answering the complaint, and pursuant to CPLR 3012(d) for leave to serve a late answer.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the cross-motion of the defendant Leah Bloom and Kodosh Holdings, LLC, which were pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Leah Bloom for lack of personal jurisdiction, for a hearing to determine the validity of service of process upon that defendant, or, in the alternative, pursuant to CPLR 317 and 5015(a) to vacate that defendant's default in appearing or answering the complaint, and pursuant to CPLR 3012(d) for leave for that defendant to serve a late answer, and substituting therefor a provision granting that branch of the cross-motion which was for a hearing to determine the validity of service of process upon the defendant Leah Bloom; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a hearing to determine the validity of service of process upon the defendant Leah Bloom, and for a new determination thereafter of those branches of the cross-motion of the defendants Leah Bloom and Kodosh Holdings, LLC, which were pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Leah Bloom for lack of personal jurisdiction, or, in the alternative, pursuant to CPLR 317 and 5015(a) to vacate that defendant's default in appearing or answering the complaint, and pursuant to CPLR 3012(d) for leave for that defendant to serve a late answer.
In April 2019, the plaintiff commenced this action against, among others, the defendants Leah Bloom and Kodosh Holdings, LLC (hereinafter together the defendants), inter alia, to recover damages for fraud and unjust enrichment. After the defendants failed to appear in the action or answer the complaint, the plaintiff moved for leave to enter a default judgment against them. The defendants opposed the motion and cross-moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, for a hearing to determine the validity of service of process upon them, or, in the alternative, pursuant to CPLR 317 and 5015(a) to vacate their default in appearing or answering the complaint, and pursuant to CPLR 3012(d) for leave to serve a late answer. In an order entered October 8, 2021, the Supreme Court, inter alia, denied those branches of the defendants' cross-motion which were pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Leah Bloom for lack of personal jurisdiction, for a hearing to determine the validity of service of process upon that defendant, or, in the alternative, pursuant to CPLR 317 and 5015(a) to vacate their default in appearing or answering the complaint, and pursuant to CPLR 3012(d) for leave to serve a late answer. The defendants appeal.
"Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served" (Aikens v Kouchnerova, 217 A.D.3d 741, 742 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Rinderman, 190 A.D.3d 885, 886). "Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of service" (Aikens v Kouchnerova, 217 A.D.3d at 742; see Deutsche Bank Natl. Trust Co. v Simpson, 208 A.D.3d 1305, 1307). "However, 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" (Aikens v Kouchnerova, 217 A.D.3d at 742 [internal quotation marks omitted]; see HSBC Bank USA, N.A. v Archibong, 157 A.D.3d 662, 663). "If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue" (Aikens v Kouchnerova, 217 A.D.3d at 742 [internal quotation marks omitted]; Deutsche Bank Natl. Trust Co. v Simpson, 208 A.D.3d at 1307 [internal quotation marks omitted]).
Here, the affidavit of the plaintiff's process server indicated that the process server served Bloom at an address on Avenue W in Brooklyn (hereinafter the Avenue W address) by delivering a copy of the summons and complaint upon a cotenant, who was a person of suitable age and discretion, on May 4, 2019, and mailing a copy of the summons and complaint to Bloom at the Avenue W address on May 6, 2019. However, Bloom's submission of a sworn statement in which she denied that she resided at the Avenue W address, and a copy of her driver license, which listed a different address as her residence at the time that service upon her was allegedly effectuated, contained specific facts to rebut the statements in the process server's affidavit (see Aikens v Kouchnerova, 217 A.D.3d at 742; HSBC Bank USA, N.A. v Archibong, 157 A.D.3d 662, 663). Therefore, the presumption of proper service upon Bloom was rebutted and the Supreme Court should have held a hearing to determine whether Bloom was properly served pursuant to CPLR 308(2) (see Aikens v Kouchnerova, 217 A.D.3d at 742; Deutsche Bank Natl. Trust Co. v Simpson, 208 A.D.3d at 1307).
"Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense" (Kokolis v Wallace, 202 A.D.3d 948, 949 [internal quotation marks omitted]; see Dunn v Law Offs. of Evans & Al-Shabazz, LLP, 189 A.D.3d 776, 779). "However, to support a determination granting relief under CPLR 317, a party must still demonstrate, and the Court must find, that the party did not receive actual notice of the summons and complaint in time to defend the action" (Kokolis v Wallace, 202 A.D.3d at 949 [internal quotation marks omitted]; see Andrews v Wartburg Receiver, LLC, 203 A.D.3d 1000, 1001; Argonne Post No. 71, Am. Legion v Lipschitz, 175 A.D.3d 1366, 1367-1368; Wassertheil v Elburg, LLC, 94 A.D.3d 753, 754). "The mere denial of receipt of the summons and complaint is... insufficient to establish lack of actual notice for the purpose of CPLR 317" (Kokolis v Wallace, 202 A.D.3d at 950 [internal quotation marks omitted]; see Wassertheil v Elburg, LLC, 94 A.D.3d at 754).
Here, the affidavit of the plaintiff's process server provided that Kodosh Holdings, LLC (hereinafter Kodosh), was served by delivery of the summons and complaint to the Secretary of State and payment of the requisite fee. The record also established that the Secretary of State mailed a copy of the summons and complaint to Kodosh's registered agent for service of process, and that the documents were delivered to Kodosh's registered agent on May 30, 2019. Contrary to Kodosh's contention, its bare and unsubstantiated denial of receipt of the summons and complaint was insufficient to establish lack of actual notice for the purpose of CPLR 317 (see Andrews v Wartburg Receiver, LLC, 203 A.D.3d at 1001; Argonne Post No. 71, Am. Legion v Lipschitz, 175 A.D.3d at 1367-1368), and did not constitute a reasonable excuse for failing to appear in the action or answer the complaint (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141; U.S. Bank N.A. v Carucci, 217 A.D.3d 894, 895). Since Kodosh failed to demonstrate that it lacked actual notice of the action in time to defend or to proffer a reasonable excuse for its default in appearing or answering the complaint, we need not consider whether Kodosh had a potentially meritorious defense to the action (see U.S. Bank N.A. v Carucci, 217 A.D.3d at 895; Andrews v Wartburg Receiver, LLC, 203 A.D.3d at 1001). Therefore, the Supreme Court properly denied those branches of the defendants' cross-motion which were pursuant to CPLR 317 and 5015(a) to vacate Kodosh's default in appearing or answering the complaint, and pursuant to CPLR 3012(d) for leave for Kodosh to serve a late answer.
The defendants' remaining contention is without merit.
IANNACCI, J.P., CHAMBERS, VOUTSINAS and VENTURA, JJ., concur.