| Roberts v Anka |
| 2007 NY Slip Op 09219 [45 AD3d 752] |
| November 20, 2007 |
| Appellate Division, Second Department |
| John Gucu Roberts, Appellant, v Viorika Vicki Anka,Respondent. |
—[*1] Smith, Buss & Jacobs, LLP, Yonkers, N.Y. (Edgar C. Gentry, Jr., of counsel), forrespondent.
In an action, inter alia, to recover damages for fraud and conversion, the plaintiff appeals, aslimited by his brief, from (1) so much of an order of the Supreme Court, Queens County (Agate,J.), entered February 21, 2006, as granted those branches of the defendant's motion which werepursuant to CPLR 317 and 5015 (a) (1) and (3) to vacate a judgment of the same court which isin favor of the plaintiff and against the defendant, entered upon default in answering thecomplaint or appearing in the action and pursuant to CPLR 3211 (a) (4) to dismiss the complaint,(2) a judgment of the same court entered March 21, 2006, which, upon the order enteredFebruary 21, 2006, is in favor of the defendant and against him dismissing the complaint, and (3)an order of the same court dated March 28, 2006, which denied his motion, inter alia, in effect, tostay the transfer of certain real property, and granted the defendant's cross motion to impose costspursuant to 22 NYCRR 130-1.1 for frivolous motion practice.
Ordered that the appeal from the order entered February 21, 2006 is dismissed; and it isfurther,
Ordered that the judgment is reversed, on the law, the defendant's motion to vacate herdefault in answering the complaint or appearing in the action is denied, the order enteredFebruary 21, 2006 is modified accordingly, and the matter is remitted to the Supreme Court,Queens [*2]County before a different justice for furtherproceedings consistent herewith; and it is further,
Ordered that the order dated March 28, 2006 is modified, on the facts and in the exercise ofdiscretion, by deleting the provision thereof granting the defendant's cross motion to imposecosts upon the plaintiff, and substituting therefor a provision denying the cross motion; as somodified, the order dated March 28, 2006 is affirmed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The appeal from the intermediate order entered February 21, 2006 must be dismissed becausethe right of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that orderare brought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
When a defendant seeking to vacate a default judgment raises a jurisdictional objectionpursuant to CPLR 5015 (a) (4), the court is required to resolve the jurisdictional question beforedetermining whether it is appropriate to grant a discretionary vacatur of the default under CPLR5015 (a) (1) (see Marable v Williams, 278 AD2d 459 [2000]; Taylor v Jones, 172AD2d 745, 746 [1991]).
CPLR 308 (2), inter alia, authorizes service by delivery of the summons within the state to aperson of suitable age and discretion at the defendant's dwelling place, and mailing the summonsto the defendant's last known residence. "The plaintiff bears the ultimate burden of proving by apreponderance of the evidence that jurisdiction over the defendant was obtained by properservice of process" (Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343 [2003]; seeWern v D'Alessandro, 219 AD2d 646, 647 [1995]; Frankel v Schilling, 149 AD2d657, 659 [1989]). "A process server's sworn affidavit of service ordinarily constitutes prima facieevidence of proper service pursuant to CPLR 308 (2)" (Bankers Trust Co. of Cal. vTsoukas, 303 AD2d at 343-344). Contrary to the defendant's contention, the Supreme Court'sfile contains an affidavit of service with a duly notarized original signature, timely filed onNovember 8, 2004. The process server asserted that the summons and complaint were deliveredto a female "relative" of the defendant of suitable age and discretion, whose physical descriptionwas set forth in detail, at the address that the defendant admits is her residence, followed by therequired mailing. The process server's affidavit established, prima facie, that the defendant wasproperly served pursuant to CPLR 308 (2).
In support of her motion to vacate the default, the defendant denied receipt of a copy of thesummons and complaint by delivery or mail, and claimed that there was no female relative"residing" at her home on the date service was allegedly effected. The fact that no female relativeresided with the defendant on the date of service does not mean that the female relative describedin the affidavit of service was not present at the defendant's home to accept service as a person ofsuitable age and discretion. Moreover, the defendant failed to submit any affidavit by any femalerelative denying receipt of the summons and complaint (cf. Foster v Jordan, 269 AD2d152 [2000]). As the defendant's jurisdictional claim was wholly conclusory, the Supreme Courterred in vacating the defendant's default on the ground that jurisdiction had not been obtainedover her (see Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453 [2000];Simmons First Natl. Bank v Mandracchia, 248 AD2d 375 [1998]).
The Supreme Court also erred to the extent that it adopted the defendant's alternativeargument, vacating the default under CPLR 5015 (a) (1) upon a showing of a reasonable excusefor failing to appear, along with a meritorious defense. Here, the defendant is unable to establisha reasonable excuse for the default, since she concedes that she received a copy of the plaintiff's[*3]summons and complaint from the attorney representing her ina related Surrogate's Court proceeding in November 2004, yet took no action in her defense priorto the default that was ordered several months later (cf. Hecht v Bass Rest., 267 AD2d279, 280 [1999]).
Since the defendant's default should not have been vacated, the Supreme Court should nothave reached, and thus should not have granted, those branches of the defendant's cross motionwhich were to dismiss the complaint pursuant to CPLR 3211. Any inquest that is to be conductedas to damages is without prejudice to an application by any party to transfer this action to theSurrogate's Court pursuant to CPLR 325 (e).
Moreover, absent the improper vacatur of the defendant's default, the plaintiff would havehad no reason to engage in the subsequent motion practice that resulted in the imposition of costsagainst him. Accordingly, the imposition of costs against the plaintiff was an improvidentexercise of discretion (see 22 NYCRR 130-1.1 [a], [c]).
The parties remaining contentions either are without merit or have been rendered academic.Goldstein, J.P., Skelos, Dillon and McCarthy, JJ., concur.