| Deutsche Bank Natl. Trust Co. v White |
| 2013 NY Slip Op 06542 [110 AD3d 759] |
| October 9, 2013 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company, as Trustee forSaxon Asset Securities Trust 2007-2, Respondent, v Delroy White, Appellant, etal., Defendant. |
—[*1] Houser & Allison, APC, New York, N.Y. (Lijue T. Philip of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Delroy White appeals from anorder of the Supreme Court, Westchester County (Murphy, J.), entered October 25, 2011,which denied, without a hearing, his motion, in effect, pursuant to CPLR 5015 (a) (4) tovacate a judgment of foreclosure and sale entered May 25, 2010, upon his failure toappear or answer the complaint.
Ordered that the order is affirmed, with costs.
This action was commenced on March 26, 2009. According to the affidavit ofservice, on April 1, 2009, the defendant Delroy White was served with, inter alia, a copyof the summons and complaint at his home, which is the mortgaged property, via "nailand mail" service pursuant to CPLR 308 (4). As required by CPLR 308 (4), the processserver also mailed a copy of the same papers to White at the same address on April 3,2009. White neither appeared nor answered the complaint. On May 25, 2010, a judgmentof foreclosure and sale (hereinafter the judgment) was entered against him. On July 1,2010, a copy of the judgment was served upon White with notice of entry. On August 20,2010, a foreclosure auction was held, and the mortgaged property was sold. In September2011, White moved, in effect, pursuant to CPLR 5015 (a) (4), to vacate the judgmententered upon his default. In support, he submitted an affidavit stating, in conclusoryfashion, that he was never served with a copy of the summons and complaint or with anyforeclosure documents. The Supreme Court denied White's motion.
The Supreme Court properly denied White's motion, in effect, pursuant to CPLR5015 (a) (4) to vacate the judgment. Service pursuant to CPLR 308 (4) may be used onlywhere personal service under CPLR 308 (1) and (2) cannot be made with due diligence(see Lemberger v Khan, 18AD3d 447 [2005]). Since the statute does not define "due diligence," it has beeninterpreted and applied on a case-by-case basis (see Estate of Waterman v Jones, 46 AD3d 63, 66 [2007]).The "due diligence" requirement may be met with "a few visits on different occasionsand at different times to the defendant's residence or place of business when thedefendant could reasonably be expected to be found at such location at those times"(id. at 66; see WellsFargo Bank, N.A. v Cherot, 102 AD3d 768 [2013]; Lemberger v Khan, 18 AD3d447 [2005]).[*2]
Here, the affidavit of the process serverconstituted prima facie evidence of proper service pursuant to CPLR 308 (4), as theprocess server made three attempts to serve White at his home at different times and ondifferent days, including a Saturday (see Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768[2013]). Since there was no indication that White worked Saturdays or that his workplacewas readily ascertainable, "the plaintiff was not required to attempt to serve the defendantat his workplace" (JPMorganChase Bank, N.A. v Szajna, 72 AD3d 902, 903 [2010]). White's bare andunsubstantiated denial of receipt was insufficient to rebut the presumption of properservice, and a hearing on the issue of service was not required (see Citimortgage, Inc. vBustamante, 107 AD3d 752 [2013]; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743 [2011]).
To the extent that White sought to vacate his default pursuant to CPLR 5015 (a) (1),the motion was untimely since it was not made within one year after a copy of thejudgment was served upon him with notice of entry (see CPLR 5015 [a] [1];US Natl. Bank Assn. v Melton, 90 AD3d at 744). Moreover, White was notentitled to relief pursuant to CPLR 5015 (a) (1), as he failed to set forth any reasonableexcuse for his default, since the only excuse proffered was that he was not served withprocess (see Deutsche BankNatl. Trust Co. v Pietranico, 102 AD3d 724 [2013]). In the absence of areasonable excuse, it is unnecessary to determine whether White demonstrated theexistence of a potentially meritorious defense (see Wells Fargo Bank v Malave, 107 AD3d 880 [2013]; Wells Fargo Bank, N.A. vCervini, 84 AD3d 789, 790 [2011]).
White's remaining contentions either are without merit or have been improperlyraised for the first time on appeal. Dillon, J.P., Angiolillo, Leventhal and Lott, JJ.,concur.