| U.S. Bank, N.A. v Arias |
| 2011 NY Slip Op 05487 [85 AD3d 1014] |
| June 21, 2011 |
| Appellate Division, Second Department |
| U.S. Bank, National Association, Respondent, v BernardoArias, Appellant, et al., Defendants. |
—[*1] Law Offices of Jordan S. Katz, P.C., Melville, N.Y. (Sabita Harjaree-Ramsaran of counsel),for respondent.
In an action to foreclose a mortgage, the defendant Bernardo Arias appeals from an order ofthe Supreme Court, Queens County (Markey, J.), dated June 7, 2010, which denied his motionpursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure and sale of the same courtdated August 4, 2009, entered upon his default in appearing in the action or answering thecomplaint, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst him for lack of personal jurisdiction.
Ordered that the order is reversed, on the law, with costs, and the matter is remitted to theSupreme Court, Queens County, for a hearing to determine whether the defendant BernardoArias was properly served with copies of the summons and complaint pursuant to CPLR 308 (2),and for a new determination thereafter of his motion to vacate the judgment of foreclosure andsale and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.
In August 2008 the plaintiff commenced this action to foreclose a mortgage on certain realproperty in Far Rockaway. One affidavit of service indicated that the defendant Bernardo Arias(hereinafter the defendant) was served with copies of the summons and complaint by substitutedservice pursuant to CPLR 308 (2) on August 19, 2008. Specifically, that affidavit of servicerecites that copies of the summons and complaint were delivered to a cotenant of suitable age anddiscretion at the defendant's residence at the location that is the subject of this action, and thatadditional copies were mailed to the defendant at that address on August 27, 2008. After researchconducted on behalf of the plaintiff allegedly revealed that the defendant's last known addresswas at a different location, in Long Island City, service was attempted again. A second affidavitof service indicated that the defendant was served by substituted service pursuant to CPLR 308(2) on September 13, 2008, by delivery of the papers to a cotenant of suitable age and discretionat the Long Island City address, and mailing to the defendant at that location on September 17,2008. The defendant neither answered the complaint nor appeared in the action. The SupremeCourt issued a judgment of foreclosure and sale dated August 4, 2009.
By order to show cause dated January 27, 2010, the defendant moved pursuant to CPLR5015 (a) (4) to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211 (a) (8) todismiss the complaint insofar as asserted against him for lack of personal jurisdiction. TheSupreme Court denied the defendant's motion in its entirety, without conducting a hearing. Wereverse.[*2]
"A process server's affidavit of service constitutes primafacie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 716 [2009]). "Although adefendant's sworn denial of receipt of service generally rebuts the presumption of proper serviceestablished by the process server's affidavit and necessitates an evidentiary hearing (seeSkyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required wherethe defendant fails to swear to 'specific facts to rebut the statements in the process server'saffidavits' " (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman,277 AD2d 369, 370 [2000]).
Here, the Supreme Court erred in determining the defendant's motion without firstconducting a hearing. The process server's affidavits constituted prima facie evidence of properservice (see Scarano v Scarano, 63 AD3d at 716). However, to rebut that showing, thedefendant submitted a sworn denial of service containing specific facts to rebut the presumptionof proper service. Furthermore, in replying to contentions raised by the plaintiff in its oppositionpapers, the defendant submitted documentary evidence supporting his claim that he did not resideat the subject premises or at the Long Island City address in 2008. The defendant's submissionwas sufficient to rebut the prima facie showing of proper service, and to necessitate a hearing.Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing todetermine whether the defendant was properly served with process pursuant to CPLR 308 (2),and for a new determination thereafter of his motion to vacate the judgment of foreclosure andsale and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.Angiolillo, J.P., Balkin, Dickerson and Cohen, JJ., concur.