| Toyota Motor Credit Corp. v Lam |
| 2012 NY Slip Op 01809 [93 AD3d 713] |
| March 13, 2012 |
| Appellate Division, Second Department |
| Toyota Motor Credit Corporation, Respondent, v HardwareLam, Defendant, and Anna Gansburg, Appellant. |
—[*1] Rubin & Rothman, LLC, Islandia, N.Y. (Elizabeth T. Vrachnas of counsel), forrespondent.
In an action to recover damages for breach of a lease, the defendant Anna Gansburg appealsfrom an order of the Supreme Court, Rockland County (Weiner, J.), dated April 11, 2011, whichdenied her motion pursuant to CPLR 5015 (a) (4) to vacate a judgment of the same court enteredSeptember 10, 2010, upon her default in appearing or answering the complaint, pursuant toCPLR 2004 for leave to serve a late answer, pursuant to CPLR 510 to transfer venue of the actionto Kings County, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst her.
Ordered that the order is reversed, on the law, with costs, and the matter is remitted to theSupreme Court, Rockland County, for a hearing to determine whether the defendant AnnaGansburg was properly served with process, and for a new determination of the motionthereafter.
Under CPLR 5015 (a) (4), a default must be vacated once a movant demonstrates lack ofpersonal jurisdiction (see Hossain v FabCab Corp., 57 AD3d 484 [2008]; Matter of Qadeera Tonezia D., 55 AD3d 606 [2008]). A party whomoves to vacate a judgment entered on default is relieved of any obligation to demonstrate areasonable excuse for the default and a potentially meritorious defense when lack of personaljurisdiction is asserted as the ground for vacatur (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074[2010]; Harkless v Reid, 23 AD3d622, 622-623 [2005]).
While "[a] process server's sworn affidavit of service ordinarily constitutes prima facieevidence of proper service" (Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343,343-344 [2003]; see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d at 1074), where"there is a sworn denial that delivery to the defendant was accomplished, the affidavit of serviceis rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at ahearing" (Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; see Deutsche BankNatl. Trust Co. v Pestano, 71 AD3d at 1074-1075; Wern v D'Alessandro, 219 AD2d646 [1995]; Frankel v Schilling, 149 AD2d 657 [1989]). Here, the defendant AnnaGansburg (hereinafter the defendant) stated in an affidavit that she did not reside at the address[*2]where copies of the summons and complaint were left by theprocess server, and submitted documents in support of her allegation that she resided elsewhere.Accordingly, a hearing is required to determine whether the defendant was properly served. Thus,the matter must be remitted to the Supreme Court, Rockland County, for such a hearing and anew determination of the defendant's motion thereafter. Angiolillo, J.P., Florio, Leventhal andLott, JJ., concur.