| US Natl. Bank Assn. v Melton |
| 2011 NY Slip Op 09116 [90 AD3d 742] |
| December 13, 2011 |
| Appellate Division, Second Department |
| US National Bank Association, as Trustee,Respondent, v Glen Harlan Melton, Appellant. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen M. Robinson of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant appeals from an order of the SupremeCourt, Nassau County (Adams, J.), entered August 9, 2010, which denied his motion, inter alia,pursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure and sale of the same courtentered April 15, 2008, upon his default in answering the complaint or otherwise appearing in theaction.
Ordered that the order is affirmed, with costs.
This action was commenced in early May 2006. According to the affidavit of service, thedefendant was served with copies of the summons and complaint at his home on May 8, 2006, bydelivery of a copy of the summons and complaint to Angelica Guevara, referred to as a cotenant,and by the mailing of a second copy of the summons and complaint to his home, all pursuant toCPLR 308 (2). The defendant neither answered the complaint nor otherwise appeared in theaction. On April 15, 2008, a judgment of foreclosure and sale (hereinafter the judgment) wasentered against him. On November 17, 2008, a copy of the judgment was served upon thedefendant with notice of entry. On May 5, 2009, a foreclosure auction was held, and themortgaged property was sold. In May 2010 the defendant moved, inter alia, pursuant to CPLR5015 (a) (4) to vacate the judgment entered upon his default. In support, he submitted an affidavitstating, in conclusory fashion, that he was never personally served with a copy of the summonsand complaint, and that he did not have "a precise recollection" as to whether he received a copyof the summons and complaint in time to defend against the action. The defendant's attorney, inan affirmation made without any personal knowledge of the facts, asserted that Guevara did notspeak or understand English, and that a hearing was necessary on the issue of whether she gave acopy of the summons and complaint to the defendant with enough time to answer. The SupremeCourt denied the defendant's motion concluding, inter alia, that his affidavit was conclusory andfailed to rebut the process server's affidavit. We affirm.
The Supreme Court properly denied that branch of the defendant's motion which waspursuant to CPLR 5015 (a) (4) to vacate the judgment. The affidavit of the process serverconstituted prima facie evidence of proper service pursuant to CPLR 308 (2) (see Deutsche Bank Natl. Trust Co. [*2]v Hussain, 78 AD3d 989 [2010]), and the defendant'sunsubstantiated denial of receipt was insufficient to rebut the presumption of proper service(id.). A hearing is not required where, as here, the defendant fails to swear to specificfacts rebutting the statements in the process server's affidavit (see U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1015 [2011]; Scarano v Scarano, 63 AD3d 716[2009]). Furthermore, the affirmation of an attorney which is not based upon personal knowledgeof the facts is of no probative or evidentiary significance (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373,384-385 [2005]; Warrington v RyderTruck Rental, Inc., 35 AD3d 455, 456 [2006]).
To the extent that the defendant moved pursuant to CPLR 5015 (a) (1) to vacate thejudgment, the motion was untimely since it was not made within one year after a copy of thejudgment was served upon him with notice of entry (see CPLR 5015 [a] [1]). Moreover,the defendant was not entitled to relief pursuant to CPLR 5015 (a) (1), as he failed to set forthany reasonable excuse for his default (see Tribeca Lending Corp. v Crawford, 79 AD3d 1018, 1020[2010]). Finally, even if the defendant's motion were treated as one made pursuant to CPLR 317,he both failed to demonstrate that he did not receive notice of the action in time to defend andmade his motion in May 2010, more than one year after a copy of the judgment was served uponhim with notice of entry (see Matter ofRockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d 1080, 1082 [2011]).
The defendant's remaining contentions either are without merit or have been renderedacademic by our determination. Dillon, J.P., Angiolillo, Florio and Dickerson, JJ., concur.