| Central Mtge. Co. v Ward |
| 2015 NY Slip Op 02926 [127 AD3d 803] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1]
| Central Mortgage Company,Respondent, v James Ward, Appellant, et al.,Defendants. |
Rubin & Licatesi, P.C., Garden City, N.Y. (Richard H. Rubin and Amy J. Zamirof counsel), for appellant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. (Alan J. Waintraub andTiffany L. Henry of counsel), for respondent.
In an action to foreclose a mortgage, the defendant James Ward appeals from anorder of the Supreme Court, Suffolk County (Santorelli, J.), entered February 6, 2014,which denied his motion, inter alia, pursuant to CPLR 317 and 5015 (a) (4) to vacate anorder of the same court (Jones, Jr. J.), dated March 5, 2013, inter alia, granting theplaintiff's motion for leave to enter judgment on the complaint and appointing a referee,upon his failure to appear or answer the complaint, and for leave to serve a lateanswer.
Ordered that the order entered February 6, 2014, is reversed, on the law, with costs,and the matter is remitted to the Supreme Court, Suffolk County, for a hearing todetermine whether the defendant James Ward was properly served with process pursuantto CPLR 308 (2), and for a new determination of his motion thereafter.
In this action to foreclose a mortgage, the Supreme Court granted the plaintiff'smotion, inter alia, for leave to enter judgment on the complaint and the appointment of areferee upon the defendants' default in appearing in the action or answering thecomplaint. The defendant James Ward subsequently moved to vacate the order enteredupon his default and to dismiss the complaint insofar as asserted against him on theground that he had not been served with copies of the summons and complaint(see CPLR 5015 [a] [4]). Alternatively, Ward moved to vacate the order and forleave to serve a late answer (see CPLR 317). The Supreme Court denied Ward'smotion, finding that service of process upon Ward was properly effected under CPLR308 (2) and that, in any event, Ward did not have a meritorious defense to the action.Ward appeals.
The affidavit of the plaintiff's process server constituted prima facie evidence ofproper service pursuant to CPLR 308 (2) (see Wachovia Bank, N.A. v Carcano, 106 AD3d 726, 726[2013]; Bank of N.Y. Mellon vScura, 102 AD3d 714, 715 [2013]). Nevertheless, in support of his motion tovacate the order entered upon his default, Ward submitted evidence rebutting the primafacie evidence of proper service. Specifically, in an affidavit, Ward asserted that he neverlived at the Farmingville address at which the substituted service was allegedly effected,but instead had lived in Freeport continuously since 2005. Thus, Ward denied that theaddress at which service was accomplished was his "actual . . . dwellingplace or usual place of abode" as of the date of service (CPLR 308 [2]). [*2]Moreover, in opposition to the motion, the plaintiffconceded that Ward had resided at multiple residences during the six years prior to thecommencement of the action and, thus, its submissions revealed a question of fact withrespect to whether the Farmingville address was Ward's actual dwelling place or usualplace of abode on the date service was allegedly effected. Inasmuch as the evidencesubmitted by Ward and the plaintiff was not dispositive of the issue whether service atthat address was proper under CPLR 308 (2), a hearing should have been held (see Sileo v Victor, 104 AD3d669, 670 [2013]; Goralski vNadzan, 89 AD3d 801, 801-802 [2011]; Engel v Boymelgreen, 80 AD3d 653, 655 [2011]; Zion v Peters, 50 AD3d894, 894-895 [2008]).
In the event that the Supreme Court determines that service was proper under CPLR308 (2), it must then decide whether to grant Ward discretionary relief under CPLR 317(see Kasowitz, Benson, Torres& Friedman, LLP v Cao, 105 AD3d 521, 521-522 [2013]). In making thatdetermination, the court must determine whether Ward "did not personally receive noticeof the summons in time to defend and has a [potentially] meritorious defense" (CPLR317; see Avila v DistinctiveDev. Co., LLC, 120 AD3d 449, 451 [2014]; cf. HSBC Bank, USA v Dammond, 59 AD3d 679, 680[2009]).
Accordingly, we remit the matter to the Supreme Court, Suffolk County, for ahearing on the issue of whether Ward was properly served under CPLR 308 (2), and for anew determination thereafter of Ward's motion (see Kasowitz, Benson, Torres &Friedman, LLP v Cao, 105 AD3d at 521-522; Sileo v Victor, 104 AD3d at670). Balkin, J.P., Leventhal, Dickerson and Miller, JJ., concur.