Opinion
2017-06172 2017-06170 Index No. 2544/10
11-13-2019
WELLS FARGO BANK, NA, Respondent, v. Leanore D. SPAULDING, Defendant, Letitia Spaulding, Appellant.
Ronald D. Weiss, P.C., Melville, NY, for appellant. Duane Morris LLP, New York, N.Y. (Brett L. Messinger of counsel), for respondent.
Ronald D. Weiss, P.C., Melville, NY, for appellant.
Duane Morris LLP, New York, N.Y. (Brett L. Messinger of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Letitia Spaulding appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered February 18, 2016, and (2) an order of the same court entered November 10, 2016. The order entered February 18, 2016, denied the defendants motion, inter alia, pursuant to CPLR 5015 to vacate a judgment of foreclosure and sale of the same court entered December 10, 2013, upon the defendants default in answering or appearing, to set aside the foreclosure sale of the subject property, and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction or, alternatively, for an extension of time to serve an answer. The order entered November 10, 2016, insofar as appealed from, denied that branch of the defendants motion which was for leave to reargue their prior motion. ORDERED that the appeal from the order entered November 10, 2016, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order entered February 18, 2016, is reversed, on the law, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine the validity of service of process upon the appellant, and for a new determination thereafter of the defendants motion; and it is further,
ORDERED that one bill of costs is awarded to the appellant.
In 2010, the plaintiff commenced this action to foreclose the subject mortgage. After the defendants purportedly were served with process and their time to appear in the action or to answer the complaint had expired, the plaintiff moved for leave to enter a default judgment and an order of reference. In an order entered October 26, 2012, the Supreme Court granted the plaintiffs motion, which was unopposed. A judgment of foreclosure and sale was entered on December 10, 2013, and the property was sold thereafter.
The defendants subsequently moved, inter alia, to vacate the judgment of foreclosure and sale entered upon their default, to set aside the foreclosure sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction or, alternatively, for an extension of time to serve an answer. In an order entered February 18, 2016, the Supreme Court denied the motion. The defendants later moved, inter alia, for leave to reargue their prior motion. In an order entered November 10, 2016, the court denied that motion. These appeals from the orders entered February 18, 2016, and November 10, 2016, ensued.
CPLR 5015(a)(4) provides that "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just," upon the ground of, inter alia, "lack of jurisdiction to render the judgment or order." A court may not rule on the excusable nature of a defendants default under CPLR 5015(a)(1) without first determining the jurisdictional question under CPLR 5015(a)(4) (see TBF Fin., LLC v. Eagle Tours, LLC, 172 A.D.3d 1269, 101 N.Y.S.3d 365 ; Bedessee Imports, Inc. v. Najjar, 170 A.D.3d 640, 95 N.Y.S.3d 577 ; Roberts v. Anka, 45 A.D.3d 752, 753, 846 N.Y.S.2d 280 ). A default must be vacated once the movant demonstrates a lack of personal jurisdiction, and the movant is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense (see Rabinowitz v. Rabinowitz, 137 A.D.3d 884, 885, 28 N.Y.S.3d 70 ; Velez v. Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84 ; Matter of Anna M. [Adam W.M.-Benjamin L.M.], 93 A.D.3d 671, 673, 940 N.Y.S.2d 121 ). "Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308" ( FV–1, Inc. v. Reid, 138 A.D.3d 922, 923, 31 N.Y.S.3d 119 ; see Washington Mut. Bank v. Murphy, 127 A.D.3d 1167, 1174, 10 N.Y.S.3d 95 ), and "[a] defect in service is not cured by the defendants subsequent receipt of actual notice of the commencement of the action" ( Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543 ).
"Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service" ( FV–1, Inc. v. Reid, 138 A.D.3d at 923, 31 N.Y.S.3d 119 ; see Travato v. Galaxy Sanitation Servs. of N.Y., Inc., 171 A.D.3d 830, 831, 98 N.Y.S.3d 84 ), but "when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing" ( Bank of N.Y. Mellon v. Ortiz, 174 A.D.3d 489, 490, 103 N.Y.S.3d 562 ; see Mizerek v. Rosenfeld, 162 A.D.3d 1005, 1006–1007, 80 N.Y.S.3d 358 ; Citibank, N.A. v. Balsamo, 144 A.D.3d 964, 41 N.Y.S.3d 744 ).
Here, the process servers affidavits of service constituted prima facie evidence of valid service pursuant to CPLR 308 (see Wells Fargo Bank, N.A. v. Tricarico, 139 A.D.3d 722, 32 N.Y.S.3d 213 ). However, the appellants affidavit in support of the defendants motion, in which she denied that she was served and set forth significant discrepancies between the process servers physical description of her and her actual physical appearance, was sufficient to rebut the process servers affidavit (see Bank of N.Y. Mellon v. Ortiz, 174 A.D.3d 489, 103 N.Y.S.3d 562 ; Wells Fargo Bank, N.A. v. Final Touch Interiors, LLC, 112 A.D.3d 813, 815, 977 N.Y.S.2d 351 ; Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d at 897, 964 N.Y.S.2d 543 ). Accordingly, a hearing is warranted on the issue of the validity of service upon the appellant (see Bank of N.Y. Mellon v. Ortiz, 174 A.D.3d 489, 103 N.Y.S.3d 562 ), and we remit the matter to the Supreme Court, Nassau County, for that purpose and for a new determination of the defendants motion thereafter.
MASTRO, J.P., ROMAN, CONNOLLY and IANNACCI, JJ., concur.