| Bank of N.Y. v Espejo |
| 2012 NY Slip Op 01200 [92 AD3d 707] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Bank of New York, Respondent, v Jose Luis Espejo et al.,Appellants, et al., Defendants. |
—[*1] Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, New York, N.Y. (Barry M. Weiss ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendants Jose Luis Espejo and Daisy Espejoappeal from an order of the Supreme Court, Queens County (Markey, J.), entered September 24,2010, which denied their motion, inter alia, to vacate the judgment of foreclosure and sale of thesame court entered September 11, 2009, upon their default in appearing or answering thecomplaint.
Ordered that the order is affirmed, with costs.
This action was commenced in early April 2007. According to the affidavits of service, thedefendants Jose Luis Espejo and Daisy Espejo (hereinafter together the defendants), were servedwith copies of the summons and complaint at their home, the mortgaged premises (hereinafterthe subject property), on April 9, 2007, by delivery of a copy of the summons and complaint toMichael Guzman, referred to as a cotenant, and by the subsequent mailing of two additionalcopies of the summons and complaint to the same address, all pursuant to CPLR 308 (2). Thedefendants neither answered the complaint nor otherwise appeared in the action. On September11, 2009, a default judgment of foreclosure and sale (hereinafter the judgment) was enteredagainst them. In May 2010 the defendants moved, inter alia, pursuant to CPLR 5015 (a) (4) tovacate the judgment entered upon their default. In support, the defendant Jose Luis Espejosubmitted an affidavit stating that he was not served with a copy of the summons and complaintbecause, at the time of service, he resided and worked in Florida. The defendant Daisy Espejosubmitted an affidavit stating that she was not served with a copy of the summons and complaintbecause Michael Guzman, who received service, did not reside at the subject property. TheSupreme Court denied the defendants' motion. The defendants appeal, and we affirm.
The Supreme Court properly denied that branch of the defendants' 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 US Natl. Bank Assn. v Melton, 90AD3d 742 [2011]; Wells FargoBank, N.A. v Christie, 83 AD3d 824, 825 [2011]; Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989 [2010]),and the defendants' unsubstantiated denial of receipt was insufficient to rebut the presumption ofproper service at the address where all notices under the mortgage were to [*2]be sent. The conclusory affidavit of the defendant Daisy Espejo thatMichael Guzman did not reside at the subject property did not rebut the presumption of properservice. Valid service pursuant to CPLR 308 (2) may be made by delivery of the summons andcomplaint to a person of suitable age and discretion who answers the door at a defendant'sresidence, but is not a resident of the subject property (see U.S. 1 Brookville Real Estate Corp. v Spallone, 21 AD3d 480,481-482 [2005]; Chesman v Lippoth, 271 AD2d 567 [2000]).
That branch of the defendants' motion which was to vacate the judgment pursuant to CPLR5015 (a) (1) was properly denied, as they failed to demonstrate both a reasonable excuse for theirdefault and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. vA.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Bank of Am. v Faracco, 89 AD3d 879 [2011]). For the samereasons, they were not entitled to enlarge their time to appear or to compel acceptance of anuntimely answer (see Midfirst Bank vAl-Rahman, 81 AD3d 797 [2011]).
Finally, the defendants were not entitled to vacatur of the judgment pursuant to CPLR 317since they failed to demonstrate that they did not receive notice of this action in time to defend it(see Tribeca Lending Corp. vCrawford, 79 AD3d 1018, 1019-1020 [2010]). Dillon, J.P., Leventhal, Belen and Lott,JJ., concur.