Opinion
2022-50136 2020-889 K C
02-04-2022
Mark Anthony Haughton, Appellant, v. Clayton Hills, Also Known as Clayton Hill, Respondent.
Susan Adler, for appellant. Anthony Balsamo, for respondent.
Unpublished Opinion
Susan Adler, for appellant. Anthony Balsamo, for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen E. Edwards, J.), entered September 10, 2020. The order granted defendant's motion to vacate a judgment of that court entered January 14, 2019 upon defendant's failure to appear or answer the complaint and to restore the case to the calendar.
ORDERED that the order is affirmed, without costs.
In 2018, plaintiff commenced this action to recover unpaid rent from defendant, who, plaintiff alleges, is his former tenant. Upon defendant's failure to appear or answer the complaint, plaintiff obtained a default judgment, entered January 14, 2019, awarding plaintiff the sum of $32, 145. Defendant's wages were garnished by the marshal.
Thereafter, defendant moved to vacate the default judgment and restore the case to the calendar. In his affidavit in support of the motion, defendant alleged that he was never served with a summons and complaint in this action. In opposition to the motion, plaintiff did not attach to his motion papers the process server's affidavit of service or any other affidavit establishing service. The Civil Court granted defendant's motion, ordered the garnishment and restraining notices lifted, and directed the marshal to return funds in the amount of $8, 637.07 to defendant.
Generally, a process server's affidavit of service establishes a prima facie case as to the method of service which, therefore, gives rise to a presumption of proper service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719 [2014]; Parker v Top Homes, Inc., 58 A.D.3d 817, 818 [2009]; 425 E. 26th St. Owners Corp. v Beaton, 50 A.D.3d 845, 846 [2008]; Sando Realty Corp. v Aris, 209 A.D.2d 682 [1994]). Here, there was no basis for the Civil Court to find that jurisdiction had been acquired over defendant, as no affidavit proving service was included in any of the papers before the court. Consequently, the court properly vacated the default judgment and granted the branch of defendant's motion seeking to restore the case to the calendar.
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.