| FV-1, Inc. v Reid |
| 2016 NY Slip Op 02961 [138 AD3d 922] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| FV-1, Inc., Respondent, v Norris Reid,Appellant, et al., Defendants. |
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi and Juan Paolo F.Dizon of counsel), for appellant.
Jeffrey A. Kosterich, LLC, Tuckahoe, NY, for respondent.
In an action to foreclose a mortgage, the defendant Norris Reid appeals, as limited byhis brief, from so much of an order of the Supreme Court, Kings County (Wade, J.),dated December 1, 2014, as denied his cross motion, inter alia, pursuant to CPLR 5015(a) (4) to vacate an order of reference of the same court (Knipel, J.), dated May 18, 2009,entered upon his failure to appear or answer the complaint.
Ordered that the order dated December 1, 2014, is reversed insofar as appealed from,on the law, with costs, and the matter is remitted to the Supreme Court, Kings County,for a hearing to determine whether the defendant Norris Reid was properly served withcopies of the summons and complaint pursuant to CPLR 308 (1), and, thereafter, a newdetermination of his cross motion.
The plaintiff commenced this action in 2008. According to the affidavit of service, at5:50 a.m. on May 22, 2008, the summons and complaint were personally delivered to thedefendant Norris Reid (hereinafter the appellant) at his home pursuant to CPLR 308 (1).The appellant neither appeared in the action nor answered the complaint and, on May 18,2009, the Supreme Court signed an order of reference. In March 2014, the plaintiff'sassignee moved for the appointment of a temporary receiver of the rents and profits fromthe mortgaged premises. Upon receiving a copy of the motion papers, the appellantcross-moved, inter alia, pursuant to CPLR 5015 (a) (4) to vacate the order of referenceentered upon his default. In support, he submitted an affidavit expressly denying that hewas served with process. The appellant averred that he did not reside in the apartmentwhere service allegedly was effected, and he denied that he could have been served at5:50 a.m. because, at that time, he would have already left home to travel to work.Further, although the affidavit of service stated that the appellant had black hair and amustache, the appellant maintained that at the time of the alleged service, he had grayhair and no mustache. The Supreme Court denied the appellant's cross motion.
Service of process upon a natural person must be made in strict compliance with thestatutory methods of service set forth in CPLR 308 (see Washington Mut. Bank v Murphy, 127 AD3d 1167,1174 [2015]; Emigrant Mtge.Co., Inc. v Westervelt, 105 AD3d 896, 896-897 [2013]). "A defendant'seventual awareness of pending litigation will not affect the absence of jurisdiction overhim or her [*2]where service of process is not effectuatedin compliance with CPLR 308" (Washington Mut. Bank v Murphy, 127 AD3d at1174). Thus, "[a] defect in service is not cured by the defendant's subsequent receipt ofactual notice of the commencement of the action" (Emigrant Mtge. Co., Inc. vWestervelt, 105 AD3d at 897).
Ordinarily, the affidavit of a process server constitutes a prima facie showing ofproper service (seeCitimortgage, Inc. v Baser, 137 AD3d 735 [2d Dept 2016]; American Home Mtge. Servicing,Inc. v Gbede, 127 AD3d 1004, 1005 [2015]; Velez v Forcelli, 125 AD3d 643, 644 [2015]; Machovec v Svoboda, 120AD3d 772, 773 [2014]; U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1015 [2011]; Scarano v Scarano, 63 AD3d716 [2009]). "However, a sworn denial of service containing specific facts generallyrebuts the presumption of proper service established by the process server's affidavit, andnecessitates an evidentiary hearing" (Deutsche Bank Natl. Trust Co. v DaCosta, 97 AD3d 630,631 [2012]). Further, whether personal delivery of the summons and complaint wasmade pursuant to CPLR 308 (1) "turns upon issues of credibility, which should bedetermined only after a hearing" (Gray v Giannikios, 90 AD3d 836, 837 [2011]).
Here, contrary to the Supreme Court's determination, since the appellant's sworndenial of receipt of process contained specific facts to rebut the statements in the processserver's affidavit, the presumption of proper service was rebutted and an evidentiaryhearing was required (seeAmerican Home Mtge. Servicing, Inc. v Gbede, 127 AD3d 1004 [2015]; Velez v Forcelli, 125 AD3d643 [2015]; Machovec v Svoboda, 120 AD3d at 773-774; Wells Fargo Bank, N.A. v FinalTouch Interiors, LLC, 112 AD3d 813 [2013]; Gray v Giannikios, 90AD3d at 837). Accordingly, we must remit the matter to the Supreme Court, KingsCounty, for a hearing to determine whether the appellant was properly served with copiesof the summons and complaint pursuant to CPLR 308 (1), and for a new determinationof the appellant's cross motion thereafter. Dillon, J.P., Austin, Maltese and Barros, JJ.,concur.