| Deutsche Bank Natl. Trust Co. v Pietranico |
| 2013 NY Slip Op 00171 [102 AD3d 724] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Respondent, v Khouloud Pietranico, Appellant, et al.,Defendants. |
—[*1] Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (JosephBattista and Timothy M. Riselvato of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Khouloud Pietranico appealsfrom an order of the Supreme Court, Suffolk County (Whelan, J.), dated July 27, 2011,which denied her motion, inter alia, in effect, to vacate her default in appearing oranswering the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the motion of the defendant KhouloudPietranico, inter alia, in effect, to vacate her default in appearing or answering thecomplaint. To the extent that she moved to vacate her default pursuant to CPLR 5015 (a)(4) for lack of personal jurisdiction due to failure to serve process, the defendant's bareand unsubstantiated denial of service was insufficient to rebut the presumption of properservice established by the duly executed affidavit of service of the plaintiff's processserver (see Reich v Redley,96 AD3d 1038 [2012]; Deutsche Bank Natl. Trust Co. v Dixon, 93 AD3d 630[2012]; US Natl. Bank Assn. vMelton, 90 AD3d 742, 743 [2011]; Citimortgage, Inc. v Phillips, 82 AD3d 1032, 1033 [2011]).
Moreover, insofar as she also sought to vacate her default pursuant to CPLR 5015 (a)(1) by demonstrating a reasonable excuse for the default and a potentially meritoriousdefense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141[1986]; U.S. Bank N.A. vStewart, 97 AD3d 740 [2012]; Deutsche Bank Natl. Trust Co. v Luden, 91 AD3d 701[2012]), the defendant failed to establish a reasonable excuse for her default, since theonly excuse proffered was that she was not served with process (see Reich vRedley, 96 AD3d at 1038; Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216, 221[2011]; Tadco Constr. Corp. vAllstate Ins. Co., 73 AD3d 1022, 1023 [2010]). Since the defendant failed todemonstrate a reasonable excuse for her default, it is unnecessary to determine whethershe demonstrated the existence of a potentially meritorious defense (see U.S. BankN.A. v Stewart, 97 AD3d at 740; Reich v Redley, 96 AD3d at 1038).Therefore, we express no view as to the Supreme Court's determinations that thedefendant waived the defense of lack of standing and that, in any event, the plaintiffestablished standing.[*2]
The defendant's remaining contentions either arewithout merit or have been rendered academic in light of our determination. Angiolillo,J.P., Leventhal, Lott and Austin, JJ., concur. [Prior Case History: 33 Misc 3d528.]