| Community W. Bank, N.A. v Stephen |
| 2015 NY Slip Op 03312 [127 AD3d 1008] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| Community West Bank, N.A., Formerly Known asGoleta National Bank, Respondent, v Cheryl Stephen, Also Known as CherylRameau, et al., Appellants, et al., Defendants. |
Berg & David, PLLC, Brooklyn, N.Y. (Abraham David of counsel), forappellants.
Zeichner Ellman & Krause, LLP, New York, N.Y. (Anna S. Park of counsel),for respondent.
In an action, inter alia, to foreclose a mortgage, the defendants Cheryl Stephen andMonica Joseph appeal from an order of the Supreme Court, Kings County (Ash, J.),dated June 10, 2013, which denied their motion pursuant to CPLR 5015 (a) (1) and (4) tovacate a judgment of foreclosure and sale dated January 15, 2013, entered upon theirdefault in appearing and answering the complaint, and, thereupon, to dismiss thecomplaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
This action was commenced by filing a summons and complaint dated March 5,2009. The defendants Cheryl Stephen and Monica Joseph (hereinafter together themoving defendants), failed to timely appear or answer. A judgment of foreclosure andsale was entered upon the moving defendants' default. The moving defendants thereaftermoved to vacate the judgment pursuant to CPLR 5015 (a) (1) and (4), and, thereupon, todismiss the complaint insofar as asserted against them. The Supreme Court denied theirmotion.
"When a defendant seeking to vacate a default judgment raises a jurisdictionalobjection pursuant to CPLR 5015 (a) (4), the court is required to resolve thejurisdictional question before determining whether it is appropriate to grant adiscretionary vacatur of the default under CPLR 5015 (a) (1)" (Canelas v Flores, 112 AD3d871, 871 [2013]; see HSBCBank USA, N.A. v Miller, 121 AD3d 1044, 1045 [2014]). Here, the affidavit ofthe plaintiff's process server constituted prima facie evidence of proper service pursuantto CPLR 308 (1) (see DeutscheBank Natl. Trust Co. v Quinones, 114 AD3d 719, 719 [2014]; Loaiza v Guzman, 111 AD3d608, 609 [2013]; Citimortgage, Inc. v Bustamante, 107 AD3d 752, 753[2013]). The only evidence submitted by the moving defendants to rebut the processserver's affidavit was an affidavit in which Joseph stated that she "was never served witha summons or complaint in the instant action." This bare and unsubstantiated denial ofservice lacked the factual specificity and detail required to rebut the prima facie proof ofproper service set forth in the affidavit of service (see Deutsche Bank Natl. Trust Co.v Quinones, 114 AD3d at 719; U.S. Bank N.A. v Tate, 102 AD3d 859, 859-860 [2013]; ACT Props., LLC v Garcia,102 AD3d 712, 713 [2013]).
[*2] Furthermore, insofar as the moving defendants moved pursuant to CPLR 5015 (a) (1) tovacate their default, they failed to establish a reasonable excuse for their default, sincethe only excuse they proffered was that Joseph was not served with process (seeHSBC Bank USA, N.A. v Miller, 121 AD3d at 1046; Bank of N.Y. v Samuels, 107AD3d 653, 654 [2013]; Reich v Redley, 96 AD3d 1038, 1039 [2012]). The absenceof a reasonable excuse for the default renders it unnecessary to determine whether themoving defendants demonstrated the existence of a potentially meritorious defense(see HSBC Bank USA, N.A. v Miller, 121 AD3d at 1046; Citimortgage, Inc.v Bustamante, 107 AD3d at 753; Reich v Redley, 96 AD3d at 1039).
Accordingly, the Supreme Court properly denied the moving defendants' motionpursuant to CPLR 5015 (a) (1) and (4) to vacate the judgment of foreclosure and sale,and, thereupon, to dismiss the complaint insofar as asserted against them. Chambers, J.P.,Hall, Cohen and Miller, JJ., concur.