| Machovec v Svoboda |
| 2014 NY Slip Op 05960 [120 AD3d 772] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Miro Machovec, Respondent, v Peter Svoboda,Appellant. |
Kerry Fontana, Brooklyn, N.Y., for appellant.
Michael Swaaley, Staten Island, N.Y., for respondent.
In an action to recover damages for breach of a lease, the defendant appeals from anorder of the Supreme Court, Richmond County (Minardo, J.), dated May 28, 2013, whichdenied his motion, inter alia, to vacate a judgment dated November 1, 2011, entered uponhis default in appearing or answering the complaint.
Ordered that the order is reversed, on the law, with costs, and the matter is remittedto the Supreme Court, Richmond County, for a hearing to determine whether thedefendant was properly served with process, and for a new determination of the motionthereafter.
The defendant leased property from the plaintiff on Staten Island. In 2010, in themidst of a dispute over the rent and an alleged oral modification of their agreement, theplaintiff commenced this action against the defendant. According to the process server'saffidavit of service, the process server personally delivered a copy of the summons andcomplaint to the defendant on September 7, 2010. The defendant, who denies that he wasserved with a copy of the summons and complaint, did not answer or otherwise appear inthe action.
In November 2010, the plaintiff mailed an additional copy of the summons andcomplaint to the defendant as a prerequisite to obtaining a default judgment under CPLR3215. The defendant received the mailing, but ignored it on advice of counsel because ofa perceived defect in the summons. The defendant expressly told counsel that he had notreceived a copy of the summons and complaint by any other means. In November 2011,the plaintiff obtained a default judgment against the defendant.
In early 2013, the defendant moved to vacate the judgment and extend the time toanswer the complaint pursuant to, inter alia, CPLR 5015 (a) (1), or to vacate thejudgment and dismiss the complaint pursuant to CPLR 3211 (a) (8) and 5015 (a) (4). TheSupreme Court denied the motion without explanation and without holding a hearing todeterminate the propriety of service of process.
A process server's affidavit of service gives rise to a presumption of proper service(see Wells Fargo Bank, N.A. vFinal Touch Interiors, LLC, 112 AD3d 813, 814 [2013]; Matter of Romero v Ramirez,100 AD3d 909, 910 [2012]; Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216,220 [2011]). To be entitled to vacatur of a default judgment and dismissal of a complaintunder CPLR 5015 (a) (4), a [*2]defendant mustovercome the presumption raised by the process server's affidavit of service. A sworndenial containing a detailed and specific contradiction of the allegations in the processserver's affidavit will defeat the presumption of proper service (see Deutsche Bank Natl. Trust Co.v DaCosta, 97 AD3d 630, 631 [2012]; Scarano v Scarano, 63 AD3d 716, 716 [2009]; BankersTrust Co. of Cal. v Tsoukas, 303 AD2d 343, 344 [2003]). If the presumption isrebutted, a hearing to determine the propriety of service of process is necessary. At thehearing, the burden is on the plaintiff to prove jurisdiction by a preponderance of theevidence (see Matter of Romero v Ramirez, 100 AD3d at 910; Tikvah Enters., LLC vNeuman, 80 AD3d 748, 749 [2011]; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589[2009]).
Here, the defendant expressly denied that he had ever been served with legal papers.Additionally, the defendant stated that he did not meet the description of the persondescribed in the affidavit of service of the summons and complaint, and he cited specific,significant discrepancies between his appearance and the description of the person servedin the process server's affidavit of service. Although the defendant's description of hisown appearance was as of the date of his affidavit, which was 2