| Deutsche Bank Natl. Trust Co. v Matos |
| 2010 NY Slip Op 07134 [77 AD3d 606] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company, as Trustee for Long BeachMortgage Loan Trust 2006-1, Appellant, v Kevin C. Matos, Respondent, et al.,Defendants. |
—[*1]
In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the SupremeCourt, Queens County (Dollard, J.), entered September 16, 2008, as, in effect, granted those branchesof the motion of the defendant Kevin C. Matos which were to vacate his default in appearing oranswering the complaint and for leave to serve a late answer.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, and those branches of the motion of the defendant Kevin C. Matos which wereto vacate his default in appearing or answering the complaint and for leave to serve a late answer aredenied.
The defendant Kevin C. Matos (hereinafter the defendant) moved, inter alia, to vacate his default inappearing or answering the complaint on the ground that he had not received the summons andcomplaint and for leave to serve a late answer. Although the Supreme Court determined, after ahearing, that the defendant had been properly served pursuant to CPLR 308 (2), it vacated thedefendant's default and granted the defendant leave to serve an answer.
As the Supreme Court determined that it had acquired personal jurisdiction over the defendant byproper service pursuant to CPLR 308 (2) (see Bossuk v Steinberg, 58 NY2d 916, 918[1983]; Chase Manhattan Mtge. Corp. vMitchell, 16 AD3d 539 [2005]), and there was no other reasonable excuse proffered for thedefendant's default (see Tadco Constr. Corp.v Allstate Ins. Co., 73 AD3d 1022, 1023 [2010]; Jefferson v Netusil, 44 AD3d 621, 622 [2007]; Sime v Ludhar, 37 AD3d 817 [2007]),the Supreme Court had no basis upon which to vacate the default. Accordingly, those branches of thedefendant's motion which were, in effect, pursuant to CPLR 5015 (a) (1) and (4) should have been denied.
Even if the defendant's motion were treated as one made pursuant to CPLR 317 (see EugeneDi Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143 [1986]; Irwin Mtge. Corp. v Devis, 72 AD3d743 [2010]; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498[1992]), the defendant failed to demonstrate that he did not receive notice of the action in time todefend (see Irwin Mtge. [*2]Corp. v Devis, 72 AD3d 743 [2010]). The plaintiff's evidencethat a copy of the summons and complaint were mailed to the defendant's correct residence addresscreated a presumption of proper mailing and of receipt (see De La Barrera v Handler, 290AD2d 476, 477 [2002]; Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453 [2000]).The defendant's mere denial of receipt, without more, did not rebut the presumption of proper mailing(see De La Barrera v Handler, 290 AD2d at 477; Udell v Alcamo Supply & Contr.Corp., 275 AD2d 453 [2000]; Matter of Rosa v Board of Examiners of City of N.Y.,143 AD2d 351 [1988]), especially where, as here, the plaintiff presented evidence at the hearing thatthe defendant received a summons and complaint in another action at the same address (see Faceyv Heyward, 244 AD2d 452, 453 [1997]).
Accordingly, those branches of the defendant's motion which were to vacate his default inappearing or answering the complaint and for leave to serve a late answer should have been denied.Rivera, J.P., Covello, Eng, Leventhal and Austin, JJ., concur.