| Emigrant Bank v Ramasir |
| 2016 NY Slip Op 08503 [145 AD3d 856] |
| December 21, 2016 |
| Appellate Division, Second Department |
[*1]
| Emigrant Bank, Respondent, v ElvistonRamasir, Also Known as Elviston R. Ramasir, Appellant, et al.,Defendants. |
David M. Namm, P.C., Mineola, NY, for appellant.
Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, NY (Ronald P.Labeck of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Elviston Ramasir, also known asElviston R. Ramasir, appeals, as limited by his brief, from so much of an order of theSupreme Court, Nassau County (Adams, J.), entered May 11, 2015, as denied that branchof his motion which was pursuant to CPLR 5015 (a) (4) to vacate a judgment offoreclosure and sale of the same court dated June 10, 2015, entered upon his failure toappear or answer the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the matter is remitted to the Supreme Court, Nassau County, for a hearing todetermine whether personal jurisdiction was obtained over the defendant ElvistonRamasir, also known as Elviston R. Ramasir, in the action, and thereafter for a newdetermination of the branch of his motion which was pursuant to CPLR 5015 (a) (4); andit is further,
Ordered that pending the hearing and determination of that branch of the motion, thetemporary restraining order dated January 22, 2015, issued by the Supreme Court isreinstated (see Coizza v 164-50Crossbay Realty Corp., 37 AD3d 640, 641 [2007]).
The Supreme Court erred in denying the branch of the motion of the defendantElviston Ramasir, also known as Elviston R. Ramasir (hereinafter the defendant) whichwas pursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure and sale datedJune 10, 2015, without conducting a hearing. "Ordinarily, a process server's affidavit ofservice establishes a prima facie case as to the method of service and, therefore, givesrise to a presumption of proper service" (Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589[2009]; see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344[2003]; Emigrant Mtge. Co.,Inc. v Westervelt, 105 AD3d 896, 897 [2013]). "However, when a defendantsubmits a sworn denial of receipt of service containing specific facts to refute thestatements in the affidavit of the process server, the prima facie showing is rebutted andthe plaintiff must establish personal jurisdiction by a preponderance of the evidence at ahearing" (U.S. Bank, N.A. vPeralta, 142 AD3d 988, 988-989 [2016]; see Citibank, N.A. v Balsamo, 144 AD3d 964 [2d Dept2016]; U.S. Bank, N.A. vTauber, 140 AD3d 1154, 1155 [2016]). "A hearing is not required where thedefendant fails to 'swear to specific facts to rebut the statements in the process server'saffidavits' " (U.S. Bank, N.A. v Peralta, 142 AD3d at 989, quotingSimonds v Grobman, 277 AD2d 369, 370 [2000]).
Here, the defendant rebutted the presumption of proper service created by theplaintiff's affidavit of service through his detailed averments that he was an inmate infederal custody at the time that service was allegedly made upon him pursuant to CPLR308 (1) at a business address in Brooklyn, entitling him to a hearing on the issue ofwhether personal jurisdiction was obtained over him in the action (see Lazarre v Davis, 109 AD3d968, 969 [2013]; Wells Fargo Bank, NA v Chaplin, 65 AD3d at 589-590).Accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing todetermine whether personal jurisdiction was obtained over the defendant (seeCampbell v Johnson, 264 AD2d 461 [1999]; Akhtar v Cavalieri, 255 AD2d275 [1998]), and a new determination thereafter of the branch of his motion which wasto vacate the judgment of foreclosure and sale pursuant to CPLR 5015 (a) (4). Balkin,J.P., Dickerson, LaSalle and Connolly, JJ., concur.