| Dime Sav. Bank of Williamsburg v 146 Ross Realty,LLC |
| 2013 NY Slip Op 03451 [106 AD3d 863] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Dime Savings Bank of Williamsburg,Respondent, v 146 Ross Realty, LLC, Defendants, and Meyer Goldberger,Appellant. |
—[*1] Borchert, Genovesi & LaSpina, P.C., Whitestone, N.Y. (Helmut Borchert and RobertW. Frommer of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Meyer Goldberger appeals froman order of the Supreme Court, Kings County (Solomon, J.), dated June 14, 2012, whichdenied his motion pursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure andsale of the same court dated December 6, 2010, entered upon his default in appearing oranswering the complaint.
Ordered that the order is reversed, on the law, with costs, and the matter is remittedto the Supreme Court, Kings County, for a hearing to determine whether the defendantMeyer Goldberger was properly served with the summons pursuant to CPLR 308 (2),and for a new determination thereafter of his motion to vacate the judgment offoreclosure and sale.
The plaintiff commenced this action to foreclose a mortgage on certain real propertyin Brooklyn. An affidavit of service stated that the defendant Meyer Goldberger wasserved with copies of the summons and complaint by substituted service pursuant toCPLR 308 (2). Specifically, the affidavit of service recited that, on July 7, 2008, copiesof the summons and complaint were delivered to Goldberger's mother, a person ofsuitable age and discretion, at the location that is the subject of this action, which wasasserted to be Goldberger's dwelling. The affidavit of service further recites thatadditional copies were mailed to Goldberger at that address on July 10, 2008. Goldbergerneither answered the complaint nor appeared in the action, and the Supreme Court issueda judgment of foreclosure and sale dated December 6, 2010.
The foreclosure sale was scheduled to be held on March 31, 2011. On March 30,2011, Goldberger filed a petition in bankruptcy under chapter 7 of the United StatedBankruptcy Code (11 USC § 701 et seq.) in the United States BankruptcyCourt for the Eastern District of New York, thereby invoking an automatic stay of thesale. However, the bankruptcy proceeding was subsequently dismissed, and theforeclosure sale was rescheduled.
By order to show cause dated April 26, 2012, Goldberger moved pursuant to CPLR5015 (a) (4) to vacate the judgment of foreclosure and sale. The Supreme Court erred indetermining [*2]the motion without first conducting ahearing. Although the process server's affidavit constituted prima facie evidence ofproper service, Goldberger's sworn claim that he did not reside at the subject premises,along with his submission of documentary evidence supporting that claim, was sufficientto rebut the prima facie showing, and to necessitate a hearing (see Toyota Motor Credit Corp. vLam, 93 AD3d 713, 714 [2012]; U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1016 [2011]).Contrary to the plaintiff's contention, Goldberger is not judicially estopped from seekingvacatur of the judgment as a result of his filing of a bankruptcy petition. Unlike thedefendant in Wells Fargo BankN.A. v Hornes (94 AD3d 755 [2012]), Goldberger did not receive a favorableresult in the bankruptcy proceeding by taking a position contrary to one he is taking inthis action (see Matter of Edsonv Southold Town Zoning Bd. of Appeals, 102 AD3d 687, 688 [2013]; Matter of One Beacon Ins. Co. vEspinoza, 37 AD3d 607, 608 [2007]). Finally, a party who moves to vacate ajudgment entered on default on the ground of lack of personal jurisdiction is not requiredto demonstrate a reasonable excuse for the default or a potentially meritorious defense(see Toyota Motor Credit Corp. v Lam, 93 AD3d at 713-714; Harkless v Reid, 23 AD3d622, 622-623 [2005]).
Accordingly, the matter must be remitted to the Supreme Court, Kings County, for ahearing to determine whether Goldberger was properly served with the summonspursuant to CPLR 308 (2), and for a new determination thereafter of his motion to vacatethe judgment of foreclosure and sale. Rivera, J.P., Dickerson, Leventhal and Lott, JJ.,concur.