| U.S. Bank, N.A. v Tauber |
| 2016 NY Slip Op 05142 [140 AD3d 1154] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank, N.A., as Successor Trustee to Bank ofAmerica, N.A., as Successor to LaSalle Bank, N.A., as Trustee for the Holders of theLuminent Mortgage Trust 2005-1, Respondent, v Roslyn Tauber, Appellant, etal., Defendants. |
Menashe & Associates, LLP, Montebello, NY (Michael Dachs of counsel), forappellant.
Akerman LLP, New York, NY (Jordan Smith and Erica R. Stein of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Roslyn Tauber appeals from anorder of the Supreme Court, Rockland County (Kelly, J.), dated May 6, 2015, whichdenied her motion pursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosureand sale of the same court entered February 6, 2015, upon her failure to appear or answerthe complaint, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar asasserted against her.
Ordered that the order is reversed, on the law, with costs, and the matter is remittedto the Supreme Court, Rockland County, for a hearing to determine whether thedefendant Roslyn Tauber was properly served with process pursuant to CPLR 308 (2),and thereafter for a new determination of her motion to vacate the judgment offoreclosure and sale and to dismiss the complaint insofar as asserted against her.
The defendant Roslyn Tauber (hereinafter the appellant) executed a promissory notewhich was secured by a mortgage on real property located in Rockland County(hereinafter the subject property). This action was commenced in February 2014 after theappellant allegedly defaulted on her payment obligations under the note and mortgage.According to the affidavit of service, the appellant was served at 11:05 a.m. on March 1,2014, at the subject property by delivery of the summons and complaint upon a personwith the first name of Rochelle, who was identified in the affidavit of service as theappellant's sister-in-law and co-occupant. The process server also indicated that onMarch 3, 2014, he mailed the documents to the appellant at her last known residence.The appellant neither answered nor appeared and, on February 6, 2015, the SupremeCourt signed a judgment of foreclosure and sale. In late March 2015, the appellantmoved pursuant to CPLR 5015 (a) (4) to vacate the judgment of foreclosure and sale andpursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her forlack of personal jurisdiction. In support of her motion, the appellant submitted anaffidavit wherein she denied that she resided at the subject property or that she receivedany papers. She also denied having a sister-in-law named Rochelle but explained that shehad a daughter by that name. The appellant stated that at the time of the purportedservice, she resided at an address in Brooklyn and, in support, submitted copies of pasttax returns [*2]and correspondence from her medicalinsurance provider setting forth the Brooklyn address. The appellant also submitted theaffidavit of her daughter, Rochelle Hamburger, who stated, inter alia, that she was theappellant's daughter, was living at the subject property in March 2014, was a Sabbathobserver, and that when the process server came to her door on a Sabbath morning, sheinformed him that she would be unable to accept or sign for any papers as such conductwould violate the Sabbath. According to the daughter, the process server apologized andstated that he would return another time, but he never did so. The Supreme Court deniedthe appellant's motion, finding that she failed to rebut the presumption of proper serviceevidenced by the affidavit of service and that she failed to demonstrate a reasonableexcuse for her default or a potentially meritorious defense.
"Ordinarily, the affidavit of a process server constitutes a prima facie showing ofproper service" (FV-1, Inc. vReid, 138 AD3d 922, 923 [2016]; see Wachovia Bank, N.A. v Greenberg, 138 AD3d 984,985 [2016]; Mortgage Elec.Registration Sys., Inc. v Losco, 125 AD3d 733 [2015]). Although bare andunsubstantiated denials are insufficient to rebut the presumption of service (see Wells Fargo Bank, N.A. vChristie, 83 AD3d 824, 825 [2011]), a sworn denial of service containingspecific facts generally rebuts the presumption of proper service established by theaffidavit of service and necessitates a hearing (see FV-1, Inc. v Reid, 138 AD3d 922 [2016]). Where thedefendant denies residing at the premises where service allegedly was made, the sworndenial, combined with documentary and other evidence supporting such claim, issufficient to rebut the plaintiff's prima facie showing of proper service and to necessitatean evidentiary hearing (seeEdwards, Angell, Palmer & Dodge, LLP v Gerschman, 116 AD3d 824, 825[2014]; Dime Sav. Bank ofWilliamsburg v 146 Ross Realty, LLC, 106 AD3d 863, 864 [2013]; Engel v Boymelgreen, 80AD3d 653, 655 [2011]).
Here, the Supreme Court erred in determining the motion without first conducting ahearing, as the appellant demonstrated her entitlement to a hearing on the issue of service(see Machovec v Svoboda,120 AD3d 772, 774 [2014]; Wells Fargo Bank, N.A. v Final Touch Interiors, LLC, 112AD3d 813, 814-815 [2013]; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896,897 [2013]; Wells Fargo Bank, N.A. v Christie, 83 AD3d at 825). Moreover,since that branch of the appellant's motion which was to vacate the judgment offoreclosure and sale was made pursuant to CPLR 5015 (a) (4), it was not appropriate forthe Supreme Court to consider whether she had demonstrated the existence of areasonable excuse or a potentially meritorious defense pursuant to CPLR 5015 (a) (1)(see Wells Fargo Bank, N.A. v Christie, 83 AD3d at 825).
The plaintiff's remaining contention is without merit.
Accordingly, we reverse the order and remit the matter to the Supreme Court,Rockland County, to conduct a hearing to determine whether service of process wasproperly effected on the appellant, and for a new determination thereafter of theappellant's motion pursuant to CPLR 5015 (a) (4) to vacate the judgment of foreclosureand sale, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst her. Dillon, J.P., Chambers, Hinds-Radix and Brathwaite Nelson, JJ., concur.