| U.S. Bank N.A. v Hasan |
| 2015 NY Slip Op 01792 [126 AD3d 683] |
| March 4, 2015 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association,Respondent, v Mohamad Hasan, Appellant, et al.,Defendants. |
Richard A. Klass, Brooklyn, N.Y., for appellant.
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F.Battista and Chris Kohn of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Mohamad Hasan appeals from anorder of the Supreme Court, Richmond County (Dollard, J.), dated February 21, 2014,which granted the plaintiff's motion for leave to enter a default judgment of foreclosureand sale against him and denied his cross motion pursuant to CPLR 317 and 5015 (a) tovacate his default in appearing or answering the complaint.
Ordered that the order is affirmed, with costs.
In July 2005, New Century Mortgage Corporation (hereinafter New Century) loaned$256,500 to the defendant Mohamad Hasan (hereinafter the defendant). The loan wasevidenced by an adjustable rate note, endorsed in blank, and was secured by a mortgageon the defendant's real property in Staten Island. In or about January 2010, the defendantdefaulted on his payment obligations under the note and mortgage. A written "CorporateAssignment of Mortgage" indicates that on June 2, 2010, New Century assigned themortgage and note to the plaintiff. Thereafter, the plaintiff commenced this action.According to an affidavit of service, the defendant was served with the summons andcomplaint on July 19, 2010, by delivery to a coworker pursuant to CPLR 308 (2). Thedefendant neither appeared nor answered the complaint. On November 25, 2011, theSupreme Court issued an order of reference on default. In November 2013, the plaintiffmoved for leave to enter a default judgment of foreclosure and sale. The defendantcross-moved pursuant to CPLR 317 and CPLR 5015 (a) to vacate his default inappearing or answering. The Supreme Court granted the plaintiff's motion and denied thedefendant's cross motion. The defendant appeals.
The Supreme Court properly granted the plaintiff's motion for leave to enter a defaultjudgment of foreclosure and sale. In support of its motion, the plaintiff produced themortgage, the unpaid note, and evidence of the defendant's default in his paymentobligations (see Baron Assoc.,LLC v Garcia Group Enters., Inc., 96 AD3d 793 [2012]). The plaintiff alsosubmitted the affidavit of service of its process server, which constitutes prima facieevidence of proper service (seeDeutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]), andevidence of the defendant's failure to appear or answer the complaint, including the orderof reference dated November 25, 2011.
The Supreme Court properly denied the defendant's cross motion to vacate hisdefault in appearing or answering the complaint. To the extent that he moved to vacatehis default pursuant [*2]to CPLR 5015 (a) (4) for lack ofpersonal jurisdiction due to an alleged failure to serve process, the defendant'sconclusory and unsubstantiated denial of service was insufficient to rebut thepresumption of proper service established by the duly executed affidavit of service (see Bank of N.Y. v Samuels,107 AD3d 653, 653-654 [2013]; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d724, 725 [2013]).
Regarding that branch of the defendant's cross motion which was to vacate hisdefault pursuant to CPLR 5015 (a) (1), he failed to establish a reasonable excuse for hisdefault, since the only excuse proffered was that he was not served with process (see Citimortgage, Inc. vBustamante, 107 AD3d 752, 753 [2013]; Deutsche Bank Natl. Trust Co. vPietranico, 102 AD3d at 725). The absence of a reasonable excuse renders itunnecessary to determine whether the defendant demonstrated the existence of apotentially meritorious defense (see Citimortgage, Inc. v Bustamante, 107 AD3dat 753; Reich v Redley, 96AD3d 1038, 1039 [2012]).
Regarding that branch of the defendant's cross motion which was to vacate hisdefault pursuant to CPLR 5015 (a) (3), he failed to demonstrate that the plaintiff engagedin any fraud, misrepresentation or other misconduct which would warrant vacating hisdefault in appearing or answering the complaint (see Professional Offshore Opportunity Fund, Ltd. v Braider,121 AD3d 766 [2014]; Wells Fargo Bank, N.A. v Hampton, 119 AD3d 856[2014]; U.S. Bank N.A. vAllen, 102 AD3d 955 [2013]).
Finally, the defendant is not entitled to be relieved of his default under CPLR 317,because he failed to demonstrate that he did not receive actual notice of the summons andcomplaint in time to defend the action, and the mere denial of receipt of the summonsand complaint is insufficient (see Capital Source v AKO Med., P.C., 110 AD3d 1026,1027 [2013]; Cavalry PortfolioServs., LLC v Reisman, 55 AD3d 524 [2008]). Dillon, J.P., Leventhal,Chambers and Roman, JJ., concur.