Opinion
10-12-2016
SASS MUNI IV DTR, et al., respondents, v. Milton J. BRAXTER, et al., defendants, Valerie A. Hawkins, appellant.
Valerie A. Hawkins, Hempstead, N.Y., appellant pro se. Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Jacqueline M. Della Chiesa of counsel), for respondents.
Valerie A. Hawkins, Hempstead, N.Y., appellant pro se.
Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Jacqueline M. Della Chiesa of counsel), for respondents.
In an action to foreclose real property tax liens, the defendant Valerie A. Hawkins appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (McCormack, J.), entered January 8, 2015, as denied that branch of her motion, made jointly with the defendant Milton J. Braxter, which was pursuant to CPLR 5015(a)(1) and (4) to vacate a judgment of foreclosure and sale of the same court entered February 5, 2014, upon her failure to appear or answer the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the appellant's motion, made jointly with the defendant Milton J. Braxter, which was pursuant to CPLR 5015(a)(1) and (4) to vacate a judgment of foreclosure and sale entered upon her failure to appear or answer the complaint. Regarding that branch of the appellant's motion which was to vacate the default judgment of foreclosure and sale pursuant to CPLR 5015(a)(4) for lack of personal jurisdiction, the process server's affidavit of service constituted prima facie evidence of service of the summons and complaint pursuant to CPLR 308(2) (see Central Mtge. Co. v. Ward, 127 A.D.3d 803, 9 N.Y.S.3d 61 ; Wachovia Bank, N.A. v. Carcano, 106 A.D.3d 726, 964 N.Y.S.2d 246 ; Roberts v. Anka, 45 A.D.3d 752, 754, 846 N.Y.S.2d 280 ; Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343–344, 756 N.Y.S.2d 92 ), and the appellant's bare and unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service (see Wachovia Bank, N.A. v. Carcano, 106 A.D.3d at 726, 964 N.Y.S.2d 246 ; U.S. Natl. Bank Assn. v. Melton, 90 A.D.3d 742, 743, 934 N.Y.S.2d 352 ; Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d at 344, 756 N.Y.S.2d 92 ).
To the extent that the appellant argues that the Supreme Court should have granted that branch of her motion which was to vacate the default judgment of foreclosure and sale pursuant to CPLR 5015(a)(1), she failed to demonstrate a reasonable excuse for her default since the only excuse she proffered was that she was not served with process (see Deutsche Bank Natl. Trust Co. v. White, 110 A.D.3d 759, 760, 972 N.Y.S.2d 664 ; Deutsche Bank Natl. Trust Co. v. Pietranico, 102 A.D.3d 724, 957 N.Y.S.2d 868 ; Reich v. Redley, 96 A.D.3d 1038, 947 N.Y.S.2d 564 ). The absence of a reasonable excuse for the default renders it unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v. White, 110 A.D.3d at 760, 972 N.Y.S.2d 664 ; Wells Fargo Bank v. Malave, 107 A.D.3d 880, 968 N.Y.S.2d 127 ; Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 790, 921 N.Y.S.2d 643 ).
Accordingly, the Supreme Court properly denied that branch of the appellant's motion, made jointly with Braxter, which was pursuant to CPLR 5015(a)(1) and (4) to vacate the default judgment of foreclosure and sale.