Opinion
2017–09421 Index No. 23717/11
11-13-2019
WELLS FARGO BANK, N.A., Respondent, v. Yvonne STARR, Appellant, et al., Defendants.
Yvonne Starr, West Islip, NY, appellant pro se. Knuckles, Komosinski & Manfro, LLP, Elmsford, N.Y. (Mark Golab, William Fowlkes, and Jordan J. Manfro of counsel), for respondent.
Yvonne Starr, West Islip, NY, appellant pro se.
Knuckles, Komosinski & Manfro, LLP, Elmsford, N.Y. (Mark Golab, William Fowlkes, and Jordan J. Manfro of counsel), for respondent.
REINALDO E. RIVERA, J.P. SYLVIA O. HINDS–RADIX HECTOR D. LASALLE ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Yvonne Starr appeals from an order of the Supreme Court, Suffolk County (W. Gerard Asher, J.), dated March 27, 2017. The order, insofar as appealed from, denied those branches of the motion of the defendant Yvonne Starr which were pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court entered November 19, 2015, upon her failure to appear or answer the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine whether the defendant Yvonne Starr was properly served with process pursuant to CPLR 308(2), and for a new determination thereafter of those branches of her motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her.
The plaintiff commenced this action against, among others, the defendant Yvonne Starr (hereinafter the defendant) to foreclose a mortgage on certain real property in West Islip. According to the affidavit of service, the defendant was served at her home pursuant to CPLR 308(2) by delivery of a copy of the summons and complaint to " ‘Jane Doe’ #1," referred to as a "co-occupant," and by mailing a second copy of the summons and complaint to the defendant's home. The defendant neither answered the complaint nor appeared in the action. Thereafter, the Supreme Court issued an order of reference and entered a judgment of foreclosure and sale.
The defendant subsequently moved, inter alia, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her, on the ground that she was not properly served with the summons and complaint. In an order dated March 27, 2017, the Supreme Court, inter alia, denied those branches of the motion without conducting a hearing. The defendant appeals.
"Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served" ( Wachovia Bank, N.A. v. Greenberg , 138 A.D.3d 984, 985, 31 N.Y.S.3d 110 ). " ‘Bare and unsubstantiated denials are insufficient to rebut the presumption of service’ " ( HSBC Bank USA, N.A. v. Archibong , 157 A.D.3d 662, 662–663, 66 N.Y.S.3d 625, quoting Rosemark Constrs., Inc. v. Ness , 149 A.D.3d 1115, 1116, 53 N.Y.S.3d 188 ). " ‘However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing’ " ( HSBC Bank USA, N.A. v. Archibong , 157 A.D.3d at 663, 66 N.Y.S.3d 625, quoting Rosemark Constrs., Inc. v. Ness , 149 A.D.3d at 1116, 53 N.Y.S.3d 188 ; see Wachovia Bank, N.A. v. Greenberg , 138 A.D.3d at 985, 31 N.Y.S.3d 110 ). " ‘If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue’ " ( HSBC Bank USA, N.A. v. Archibong , 157 A.D.3d at 663, 66 N.Y.S.3d 625, quoting Rosemark Constrs., Inc. v. Ness , 149 A.D.3d at 1116, 53 N.Y.S.3d 188 ).
Here, we disagree with the determination of the Supreme Court to deny the subject branches of the defendant's motion without first conducting a hearing (see HSBC Bank USA, N.A. v. Archibong , 157 A.D.3d at 663, 66 N.Y.S.3d 625 ; Wachovia Bank, N.A. v. Greenberg , 138 A.D.3d at 985, 31 N.Y.S.3d 110 ; Wells Fargo Bank, N.A. v. Christie , 83 A.D.3d 824, 825, 921 N.Y.S.2d 127 ). The defendant demonstrated her entitlement to a hearing on the issue of service through her affidavit, in which she provided specific facts sufficient to rebut the presumption of proper service (see HSBC Bank USA, N.A. v. Archibong , 157 A.D.3d at 663, 66 N.Y.S.3d 625 ; Wachovia Bank, N.A. v. Greenberg , 138 A.D.3d at 985, 31 N.Y.S.3d 110 ; Wells Fargo Bank, N.A. v. Christie , 83 A.D.3d at 825, 921 N.Y.S.2d 127 ). Thus, a hearing is required.
Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a hearing to determine whether the defendant was properly served with process pursuant to CPLR 308(2), and for a new determination thereafter of those branches of her motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her.
RIVERA, J.P., HINDS–RADIX, LASALLE and IANNACCI, JJ., concur.