| Summitbridge Credit Invs., LLC v Wallace |
| 2015 NY Slip Op 03825 [128 AD3d 676] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| Summitbridge Credit Investments, LLC,Respondent, v William Timothy Wallace et al., Appellants, et al., Defendants.Barry Skolnick, Intervenor-Respondent. |
Morrison Cohen LLP, New York, N.Y. (Y. David Scharf and David A. Piedra ofcounsel), for appellants.
Buchanan Ingersoll & Rooney P.C., Buffalo, N.Y. (Christopher P. Schueller ofcounsel), for respondent.
Margolin & Weinreb Law Group, Syosset, N.Y. (Alan Weinreb of counsel), forintervenor-respondent.
In an action to foreclose a mortgage, the defendants William Timothy Wallace andFathia Zouiyen appeal from an order of the Supreme Court, Suffolk County (Pitts, J.),dated March 27, 2013, which denied their motion, inter alia, pursuant to CPLR 5015 tovacate a judgment of foreclosure and sale of the same court (R. Doyle, J.) enteredNovember 14, 2011, upon their failure to appear or answer, and to set aside the sale ofthe subject property.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the appellants' motion, inter alia, pursuant CPLR5015 (a) to vacate the judgment of foreclosure and sale entered upon their default inappearing or answering, and to set aside the sale of the subject property.
The appellants failed to demonstrate their entitlement to vacatur pursuant to CPLR5015 (a) (4) for lack of personal jurisdiction. A process server's affidavit of serviceconstitutes prima facie evidence of proper service (see U.S. Bank N.A. v Hasan, 126 AD3d 683, 684 [2015];Deutsche Bank Natl. Trust Co. vQuinones, 114 AD3d 719 [2014]). Here, the plaintiff submitted affidavits ofservice establishing, prima facie, that the appellants were properly served pursuant toCPLR 308 (2) (see F.I. duPont, Glore Forgan & Co. v Chen, 41 NY2d 794,797 [1977]; Bank of Am., N.A.v Grufferman, 117 AD3d 508 [2014]; cf. McCormack v Goldstein, 204AD2d 121, 122 [1994]). Contrary to the appellants' contention, the plaintiff's submissionof supplemental affidavits of service properly cured any deficiencies in the originals(see CPLR 305 [c]; Mrwik v Mrwik, 49 AD2d 750 [1975]; AirConditioning Training Corp. v Pirrote, 270 App Div 391 [1946]). The appellantsfailed to rebut the presumption of proper service created by the affidavits.
Contrary to the defendants' contention, the fact that the plaintiff omitted the special[*2]notice required by RPAPL 1320 from the summons itserved did not deprive the Supreme Court of subject matter jurisdiction to entertain theaction (see generally DeutscheBank Trust Co. Ams. v Shields, 116 AD3d 653, 654 [2014]; Pritchard v Curtis, 101 AD3d1502, 1504-1505 [2012]).
With respect to that branch of the appellants' motion which was pursuant to CPLR5015 (a) (1), the only excuse they proffered in the Supreme Court was that they were notserved with process. As such, they failed to establish a reasonable excuse for their default(see U.S. Bank N.A. v Hasan, 126 AD3d at 684; Citimortgage, Inc. vBustamante, 107 AD3d 752, 753 [2013]). The absence of a reasonable excuserenders it unnecessary to determine whether the appellants demonstrated the existence ofa potentially meritorious defense to the action (see U.S. Bank N.A. v Hasan, 126AD3d at 684; Cervini v CiscoGen. Constr., Inc., 123 AD3d 1077 [2014]).
With respect to that branch of the appellants' motion which was pursuant to CPLR5015 (a) (3), they failed to demonstrate that the plaintiff engaged in any fraud,misrepresentation, or other misconduct warranting vacatur of the judgment. Theappellants' conclusory allegations of fraud and misconduct were insufficient to makesuch a showing (see Matter ofCallwood v Cabrera, 49 AD3d 394, 394-395 [2008]; Rapaport vRapaport, 150 AD2d 353, 355 [1989]).
The appellants also failed to establish that the judgment should be vacated in theinterests of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d62, 68 [2003]; HSBC Mtge.Servs. v Talip, 111 AD3d 889, 890 [2013]; Mortgage Elec. Registration Sys., Inc. v Dort-Relus, 107 AD3d861, 862 [2013]).
The parties' remaining contentions are either improperly raised for the first time onappeal, based on matter dehors the record, or without merit. Mastro, J.P., Leventhal,Cohen and Maltese, JJ., concur.