Opinion
No. 2023-780 Q C
05-17-2024
Parkway Anesthesia Associates, Respondent, v. Ernesto Valverde, Appellant.
Gibson, Dunn & Crutcher, LLP (Apratim Vidyarthi of counsel), for appellant. Smith, Carroad, Wan & Parikh, P.C. (Kevin M. Knab of counsel), for respondent (no brief filed).
Unpublished Opinion
Gibson, Dunn & Crutcher, LLP (Apratim Vidyarthi of counsel), for appellant.
Smith, Carroad, Wan & Parikh, P.C. (Kevin M. Knab of counsel), for respondent (no brief filed).
PRESENT: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Claudia Lanzetta, J.), dated March 21, 2023. The order denied defendant's motion to vacate a judgment of that court entered June 29, 2009 upon defendant's failure to appear or answer the complaint.
ORDERED that the order is reversed, without costs, and the matter is remitted to the Civil Court for a determination, following a traverse hearing, of defendant's motion to vacate the default judgment.
In this debt collection action, after defendant did not appear or answer the complaint, the Civil Court entered a default judgment on June 29, 2009. In August 2022, defendant moved to vacate the default judgment, alleging that service of the summons and complaint was improper. In an order dated March 21, 2023, the Civil Court denied defendant's motion, finding that defendant's denial of receipt of service did not rebut the presumption of proper service generated by the affidavit of service, and, therefore, that there was no reasonable excuse for the default. Thus, the court declined to consider whether defendant demonstrated the existence of a potentially meritorious defense.
A process server's sworn affidavit of proper service constitutes prima facie evidence of such service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719 [2014]; Bankers Trust Co. of Cal. v Tsoukas, 303 A.D.2d 343 [2003]). However, where a defendant's sworn statement denying receipt of service contains "specific facts to rebut the statements in the process server's affidavit[]" (Simonds v Grobman, 277 A.D.2d 369, 370 [2000]), a traverse hearing is necessary in order to determine whether service of process was properly effectuated (see Wells Fargo Bank, N.A. v Final Touch Interiors, LLC, 112 A.D.3d 813 [2013]; Wells Fargo Bank, N.A. v Christie, 83 A.D.3d 824 [2011]; New Century Fin. Servs., Inc. v Thomas, 57 Misc.3d 143 [A], 2017 NY Slip Op 51411[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also A.H. Physical Therapy, P.C. v 21st Century Advantage Ins. Co., 74 Misc.3d 41 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Cautious Care Med., P.C. v 21st Century Ins. Co., 72 Misc.3d 140 [A], 2021 NY Slip Op 50785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).
In the case at bar, the process server stated in his affidavit that he served a 32-year-old, five foot seven inch, tan male relative of defendant's, at defendant's address, and that the summons and complaint had been mailed to the same address (see CPLR 308 [2]). However, defendant set forth specific facts in his affidavit in further support of his motion, that the listed address was not his home, and that none of the members of his household fit the description of the person found in the process server's affidavit-his household at the time consisted of himself, age 50 and five feet four inches tall, his wife, who is female, and his two sons who were 9 and 17, and who would have been at school at the time of the alleged service.
In view of the foregoing, a traverse hearing is warranted.
However, should the Civil Court determine, following the traverse hearing, that personal jurisdiction was properly obtained over defendant, the motion to vacate the default judgment should be denied (see 4720 Ave., Inc. v Smith, 78 Misc.3d 133 [A], 2023 NY Slip Op 50443[U][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]; Fountain Terrace Owners, Inc. v Balic, 59 Misc.3d 136 [A], 2018 NY Slip Op 50519[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), as the Civil Court would have been correct in its original conclusion that there was no excusable default.
Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination, following a traverse hearing, of defendant's motion to vacate the default judgment.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.