| Wells Fargo Bank, N.A. v Final Touch Interiors, LLC |
| 2013 NY Slip Op 08431 [112 AD3d 813] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., as Successor by Merger toWachovia Bank, N.A., Respondent, v Final Touch Interiors, LLC, et al.,Defendants, and Hilda Friesen, Also Known as Hilda L. Friesen, et al.,Appellants. |
—[*1] Helfand & Helfand, New York, N.Y. (Aaron Weissberg of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Hilda Friesen, also known asHilda L. Friesen, and Anton Neureiter, also known as Anton E. Neureiter, appeal from somuch of an order of the Supreme Court, Westchester County (Adler, J.), enteredNovember 7, 2012, as granted that branch of the plaintiff's motion which was for leave toenter a default judgment against them upon their failure to timely appear or answer thecomplaint, and denied that branch of their cross motion which was pursuant to CPLR3211 (a) (8) to dismiss the complaint insofar as asserted against them for lack of personaljurisdiction.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the matter is remitted to the Supreme Court, Westchester County, for a hearing todetermine whether the appellants were properly served with process, and thereafter a newdetermination of that branch of the plaintiff's motion which was for leave to enter adefault judgment against the appellants upon their failure to timely appear or answer thecomplaint, and that branch of the appellants' cross motion which was pursuant to CPLR3211 (a) (8) to dismiss the complaint insofar as asserted against them for lack of personaljurisdiction.
Contrary to the Supreme Court's conclusion, the appellants, Hilda Friesen, alsoknown as Hilda L. Friesen, and Anton Neureiter, also known as Anton E. Neureiter, didnot waive the defense of lack of personal jurisdiction when, after failing to timely appearor answer the complaint, they appeared at a mandatory foreclosure settlement conference(see CPLR 3408; Matterof Sessa v Board of Assessors of Town of N. Elba, 46 AD3d 1163, 1165-1166[2007]). There is nothing in the record to indicate that when they appeared they did so inany other capacity than as the representatives of Final Touch, Inc., the only defendant tohave timely answered the complaint (see Kwang Ho Kim v D & W Shin RealtyCorp., 47 AD3d 616, 620 [2008]; cf. McGowan v Bellanger, 32 AD2d 293[1969]).
Further, the Supreme Court should have ordered a hearing on whether the appellantswere properly served with process (see Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825[2011]). The process server's affidavits of service constituted prima facie proof of properservice on Neureiter via [*2]substituted service onFriesen (see CPLR 308 [2]) and on Friesen personally (see CPLR 308[1]). However, Friesen's statements denying that she was ever served and setting forth,inter alia, significant discrepancies between the process server's physical description ofher and her actual physical appearance were sufficient to rebut the process server'saffidavits (see Emigrant Mtge.Co., Inc. v Westervelt, 105 AD3d 896, 897 [2013]; Kopman v Blue RidgeIns. Co., 296 AD2d 479, 480 [2002]; see also Washington Mut. Bank v Holt, 71 AD3d 670[2010]). Therefore, a hearing is warranted on the issue of proper service.
The plaintiff's remaining contentions are without merit. Eng, P.J., Dickerson,Chambers and Hall, JJ., concur.