| Indymac Fed. Bank FSB v Quattrochi |
| 2012 NY Slip Op 06783 [99 AD3d 763] |
| October 10, 2012 |
| Appellate Division, Second Department |
| Indymac Federal Bank FSB, Respondent, v Ann M.Quattrochi et al., Defendants, and Emigrant Bank, Appellant. |
—[*1] Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph Battista ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Emigrant Bank appeals from so much ofan order of the Supreme Court, Rockland County (Kelly, J.), entered April 7, 2011, as denied itsmotion pursuant to CPLR 5015 (a) (1) and (4) to vacate a judgment of foreclosure and saleentered July 2, 2009, upon its default in answering, to set aside the foreclosure sale held pursuantthereto, and to vacate the referee's deed in foreclosure.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied the motion of the defendant Emigrant Bank (hereinafterthe appellant), pursuant to CPLR 5015 (a) (1) and (4), inter alia, to vacate the judgment offoreclosure and sale entered upon its default in answering the complaint. As to that branch of theappellant's motion which was to vacate its default pursuant to CPLR 5015 (a) (4) for lack ofjurisdiction, the affidavit of the plaintiff's process server constituted prima facie evidence ofproper service pursuant to CPLR 311 (a) (1) (see C&H Import & Export, Inc. v MNA Global, Inc., 79 AD3d 784,785 [2010]; SFR Funding, Inc. v StudioFifty Corp., 36 AD3d 604, 605 [2007]; Galarza v Saddle Cove Assoc., LLC, 22 AD3d 523 [2005]).Contrary to the appellant's contention, it failed to rebut this presumption of proper service."Although a defendant's sworn denial of receipt of service generally rebuts the presumption ofproper service established by the process server's affidavit and necessitates an evidentiary hearing(see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing isrequired where the defendant fails to swear to 'specific facts to rebut the statements in the processserver's affidavits' " (Scarano vScarano, 63 AD3d 716, 716 [2009], quoting Simonds v Grobman, 277 AD2d369, 370 [2000]; see CountrywideHome Loans Servicing, LP v Albert, 78 AD3d 983, 984-985 [2010]; City of New York v Miller, 72 AD3d726, 727 [2010]; Carrenard vMass, 11 AD3d 501 [2004]). Here, the appellant submitted the affidavit of the personupon whom process allegedly was served, and that person (hereinafter the agent) did not denythat she was an agent authorized to receive service on behalf of the appellant, that she was atwork on the date process was effectuated, or that her appearance matched the process server'sdescription of the individual served. Rather, the agent asserted that she did not "recall" beingserved on that date and that she always followed the standard procedure of [*2]immediately recording the receipt of legal papers in a "SubpoenaCase Record book" as soon as she received them. The agent stated that, since the "SubpoenaCase Record book" does not indicate that she received the summons and complaint on the dateset forth in the affidavit of service, or on any date thereafter, she did "not believe [she] couldhave been served as alleged in the affidavit of service." However, the pages of the "SubpoenaCase Record book" submitted by the appellant do not substantiate, and, in fact, negate, theassertion that the agent always followed this standard procedure inasmuch as they containnumerous entries that are dated out of sequence. As such, no hearing was necessary to determinewhether the appellant was properly served and there was no basis for granting the appellant'smotion pursuant to CPLR 5015 (a) (4).
As to that branch of the appellant's motion which was made pursuant to CPLR 5015 (a) (1),the appellant failed to establish a reasonable excuse for its default, since the only excuse itproffered was that it was not served with process (see Reich v Redley, 96 AD3d 1038 [2012]; Stephan B. Gleich & Assoc. vGritsipis, 87 AD3d 216, 221 [2011]; Pezolano v Incorporated City of Glen Cove, 71 AD3d 970, 971[2010]). "Since [the appellant] failed to offer a reasonable excuse, it is unnecessary to considerwhether [it] sufficiently demonstrated the existence of a potentially meritorious defense" (Lane v Smith, 84 AD3d 746, 748[2011]; see Reich v Redley, 96AD3d 1038 [2012]). Skelos, J.P., Leventhal, Chambers and Lott, JJ., concur.