| Deutsche Bank Natl. Trust Co. v DaCosta |
| 2012 NY Slip Op 05495 [97 AD3d 630] |
| July 11, 2012 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Appellant, v Rosemarie T. DaCosta et al., Respondents, et al.,Defendants. |
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In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated August 4, 2010,as granted those branches of the motion of the defendants Rosemarie T. DaCosta and RyanDaCosta which were pursuant to CPLR 317 and 5015 (a) (4) to vacate a judgment of foreclosureand sale of the same court dated January 7, 2009, entered upon their default, and, in effect,pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing onthe issue of whether the defendants Rosemarie T. DaCosta and Ryan DaCosta were properlyserved with process pursuant to CPLR 308 (2), and a new determination thereafter of thosebranches of their motion which were pursuant to CPLR 317 and 5015 (a) (4) to vacate thejudgment of foreclosure and sale, and, in effect, pursuant to CPLR 3211 (a) (3) to dismiss thecomplaint insofar as asserted against those defendants.
In May 2005 the defendants Rosemarie T. DaCosta and Ryan DaCosta (hereinafter togetherthe DaCostas) executed an adjustable rate note to borrow the sum of $328,000 from IndymacBank, FSB. The note was secured by a mortgage on the DaCostas' property located in CentralIslip. The DaCostas allegedly defaulted in making the monthly installment payment due onMarch 1, 2007, and each monthly installment due thereafter. Pursuant to an assignment,Mortgage Electronic Registration Systems, Inc., as nominee for Indymac Bank, FSB, assignedthe note and mortgage to the plaintiff. The plaintiff commenced this action against, amongothers, the DaCostas, to foreclose the mortgage.
The DaCostas did not answer, appear, or timely move to dismiss the complaint. In an orderdated January 7, 2009, the Supreme Court granted the plaintiff's motion for the entry of ajudgment of foreclosure and sale upon the DaCostas' default.
The DaCostas moved, inter alia, pursuant to CPLR 317 and 5015 (a) (3) and (4) to vacate thejudgment of foreclosure and sale, and, in effect, pursuant to CPLR 3211 (a) (3) to dismiss thecomplaint insofar as asserted against them. The Supreme Court granted those branches of themotion which were pursuant to CPLR 317, 5015 (a) (4), and, in effect, 3211 (a) (3). The plaintiffappeals.[*2]
To vacate a default pursuant to CPLR 317, a defendantwho has not been served pursuant to CPLR 308 (1) does not have to establish a reasonableexcuse for his or her default, but must show that he or she did not actually receive notice of theaction in time to defend it, and must further show that he or she has a potentially meritoriousdefense (see Wassertheil v Elburg,LLC, 94 AD3d 753, 753 [2012]; Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d1080, 1081 [2011]). The mere denial of the receipt of the summons and complaint isinsufficient to rebut the presumption of service established by a process server's affidavit (seeWassertheil v Elburg, LLC, 94 AD3d at 753; Rockland Bakery, Inc. v B.M. Baking Co.,Inc., 83 AD3d at 1081-1082; IrwinMtge. Corp. v Devis, 72 AD3d 743 [2010]; Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984, 984[2009]; Hamlet on Olde Oyster BayHomeowners Assn., Inc. v Ellner, 57 AD3d 732, 732 [2008]; Mortgage Elec. Registration Sys., Inc. vSchotter, 50 AD3d 983 [2008]). However, a sworn denial of service containing specificfacts generally rebuts the presumption of proper service established by the process server'saffidavit, and necessitates an evidentiary hearing (see Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825 [2011]).Here, in light of the factual recitation in the DaCostas' sworn denial of service, the SupremeCourt should have conducted a hearing to determine whether service of process was properlyeffected.
Accordingly, we reverse the order insofar as appealed from, and remit the matter to theSupreme Court, Suffolk County, to conduct a hearing to determine whether service of processwas properly effected upon the DaCostas, and for a new determination thereafter of thosebranches of the DaCostas' motion which were pursuant to CPLR 317 and 5015 (a) (4) to vacatethe judgment of foreclosure and, in effect, pursuant to CPLR 3211 (a) (3) to dismiss thecomplaint insofar as asserted against them.
The plaintiff's remaining contentions either are without merit or need not be reached in lightof our determination. Mastro, A.P.J., Angiolillo, Austin and Sgroi, JJ., concur.