| Wells Fargo Bank, N.A. v Christie |
| 2011 NY Slip Op 03053 [83 AD3d 824] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., Respondent, v Alex T. Christie etal., Defendants, and Emilsen E. Restrepo, Appellant. |
—[*1] Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Jordan J. Manfro of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Emilsen E. Restrepo appeals from anorder of the Supreme Court, Suffolk County (MacKenzie, J.), dated November 7, 2008, whichdenied her motion pursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure and saledated July 28, 2008, entered upon her default in answering or appearing.
Ordered that the order is reversed, on the law, with costs, and the matter is remitted to theSupreme Court, Suffolk County, for a hearing to determine whether the defendant, Emilsen R.Restrepo, was properly served with process pursuant to CPLR 308 (2), and thereafter for a newdetermination of her motion to vacate the judgment of foreclosure and sale.
This action was commenced in late May 2007. According to the affidavit of service, thedefendant, Emilsen E. Restrepo, was served at her home pursuant to CPLR 308 (2) by delivery ofthe summons and complaint upon Jose Ramirez, referred to as a cotenant. Restrepo neitheranswered nor appeared and, on July 28, 2008, the Supreme Court signed a judgment offoreclosure and sale. In October 2008 Restrepo moved pursuant to CPLR 5015 (a) (4) to vacatethe judgment which was entered upon her default. In support, she submitted an affidavitexplicitly stating that the affidavit of service was false, that she did not know anyone named JoseRamirez, and that no one by that name or fitting the description contained in the affidavit ofservice ever entered or occupied her home. The Supreme Court denied Restrepo's motion, findingthat her affidavit was self-serving and insufficient to rebut the presumption of service created bythe affidavit of service. In rejecting Restrepo's lack of jurisdiction argument, the Supreme Courtalso determined that she failed to establish a reasonable excuse for her default pursuant to CPLR5015 (a) (1). Moreover, the Supreme Court determined that Wells Fargo had standing tocommence the action. We reverse.
Ordinarily, the affidavit of a process server constitutes prima facie evidence that thedefendant was validly served (see USConsults v APG, Inc., 82 AD3d 753 [2011]; Washington Mut. Bank v Holt, 71 AD3d 670 [2010]). While bareand unsubstantiated denials are insufficient to rebut the presumption of service (see US Consults v APG, [*2]Inc., 82 AD3d 753 [2011]; Sturino v Nino Tripicchio & SonLandscaping, 65 AD3d 1327 [2009]), a sworn denial of service containing specific factsgenerally rebuts the presumption of proper service established by the process server's affidavitand necessitates an evidentiary hearing (see Engel v Boymelgreen, 80 AD3d 653 [2011]). Here, theSupreme Court erred in determining the motion without first conducting a hearing, as Restrepodemonstrated her entitlement to a hearing on the issue of service by her sworn denial that sheknew anyone by the name of Jose Ramirez and by her declaration that no one by that name andphysical description ever entered or occupied her home (id; see Deutsche Bank Natl. Trust Co. vPestano, 71 AD3d 1074, 1074-1075 [2010]; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589 [2009]).Moreover, since Restrepo's motion to vacate the judgment of foreclosure was made pursuant toCPLR 5015 (a) (4), it was not appropriate for the Supreme Court to consider whether she haddemonstrated the existence of a reasonable excuse or a potentially meritorious defense pursuantto CPLR 5015 (a) (1). As such, we express no view as to the merits of any defense, including thedefense of lack of standing. Dillon, J.P., Dickerson, Hall and Roman, JJ., concur.