| Citimortgage, Inc. v Bustamante |
| 2013 NY Slip Op 04304 [107 AD3d 752] |
| June 12, 2013 |
| Appellate Division, Second Department |
| Citimortgage, Inc., Respondent, v VictorBustamante, Appellant, et al., Defendants. |
—[*1] Akerman Senterfitt LLP, New York, N.Y. (Jordan M. Smith of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Victor Bustamante appeals froman order of the Supreme Court, Queens County (Gavrin, J.), dated March 26, 2012,which denied his motion pursuant to CPLR 5015 (a) (1), (3) and (4) to vacate a judgmentof foreclosure and sale of the same court dated December 16, 2009, entered upon hisdefault in appearing or answering the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the appellant's motion pursuant to CPLR 5015(a) (1), (3) and (4) to vacate a judgment of foreclosure and sale that was entered upon hisdefault in appearing or answering the complaint. As to that branch of the appellant'smotion which was pursuant to CPLR 5015 (a) (4), the process server's affidavit ofservice constituted prima facie evidence of service of the summons and complaintpursuant to CPLR 308 (1) (seeReich v Redley, 96 AD3d 1038 [2012]), and the appellant's bare andunsubstantiated denial of receipt was insufficient to rebut the presumption of properservice (see U.S. Bank N.A. vTate, 102 AD3d 859 [2013]; Deutsche Bank Natl. Trust Co. v DaCosta, 97 AD3d 630,631 [2012]). Therefore, a hearing on the issue of service was not required (see US Natl. Bank Assn. vMelton, 90 AD3d 742 [2011]; Scarano v Scarano, 63 AD3d 716 [2009]). To the extentthe appellant argues that the Supreme Court should have granted that branch of hismotion which was to vacate the default judgment of foreclosure and sale pursuant toCPLR 5015 (a) (1), he failed to demonstrate a reasonable excuse for his default since theonly excuse he proffered was that he was not served with process (see Deutsche Bank Natl. Trust Co.v Pietranico, 102 AD3d 724, 724 [2013]). The absence of a reasonable excusefor the default renders it unnecessary to determine whether the appellant demonstratedthe existence of a potentially meritorious defense (see Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 790[2011]).
Regarding that branch of the appellant's motion which was pursuant to CPLR 5015(a) (3), despite the appellant's allegations of improper practices by the plaintiff's agents inunrelated matters, he failed to meet his burden of establishing fraud, misrepresentation,or other misconduct on the part of the plaintiff in this matter which could warrant vacaturof the default [*2]judgment of foreclosure and salepursuant to CPLR 5015 (a) (3) (see Onewest Bank, FSB v Martinez, 101 AD3d 969, 970[2012]; Deutsche Bank Natl.Trust Co. v Hunter, 100 AD3d 810, 811 [2012]; Wells Fargo Bank N.A. vHornes, 94 AD3d 755 [2012]; Tribeca Lending Corp. v Crawford, 79 AD3d 1018, 1020[2010]).
The appellant's remaining contention is improperly raised for the first time on appeal.
Accordingly, the Supreme Court properly denied the appellant's motion pursuant toCPLR 5015 (a) (1), (3) and (4) to vacate the default judgment of foreclosure and sale.Dillon, J.P., Chambers, Austin and Hinds-Radix, JJ., concur.