| Deutsche Bank Natl. Trust Co. v O'King |
| 2017 NY Slip Op 01673 [148 AD3d 776] |
| March 8, 2017 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee for Holdersof GSAMP Trust 2005-HE1, Mortgage Pass-Through Certificates, Series 2005-HE1,Respondent, v Lawrence O'King, Jr., Appellant, et al.,Defendants. |
Lawrence O. King, Jr., sued herein as Lawrence O'King, Jr., Yonkers, NY, appellant prose.
Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (David V. Mignardi ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Lawrence O'King, Jr., appeals, as limitedby his brief, from so much of an order of the Supreme Court, Westchester County (Wood, J.),dated October 22, 2014, as denied that branch of his motion which was pursuant to CPLR 5015(a) (4) to vacate a judgment of foreclosure and sale of the same court (Loehr, J.) entered June 11,2010, upon his default in appearing in the action or answering the complaint.
Ordered that the order dated October 22, 2014, is reversed insofar as appealed from, on thelaw, with costs, and the matter is remitted to the Supreme Court, Westchester County, for ahearing to determine whether the defendant Lawrence O'King, Jr., was properly served withprocess pursuant to CPLR 308 (4), and for a new determination thereafter of that branch of hismotion which was pursuant to CPLR 5015 (a) (4) to vacate the judgment of foreclosure andsale.
The plaintiff commenced this action against, among others, the defendant Lawrence O'King,Jr. (hereinafter the defendant), to foreclose a mortgage. The defendant failed to appear in thisaction or answer the complaint. On June 11, 2010, the Supreme Court entered a judgment offoreclosure and sale upon the defendant's default. By order to show cause dated July 25, 2014,the defendant moved, inter alia, pursuant to CPLR 5015 (a) (4) to vacate the judgment offoreclosure and sale. Insofar as relevant here, the Supreme Court denied that branch of thedefendant's motion, without holding a hearing to determine the propriety of service ofprocess.
A process server's affidavit of service gives rise to a presumption of proper service (see Velez v Forcelli, 125 AD3d643, 644 [2015]; Edwards, Angell,Palmer & Dodge, LLP v Gerschman, 116 AD3d 824, 825 [2014]; Scarano v Scarano, 63 AD3d 716[2009]). To be entitled to vacatur of a default judgment under CPLR 5015 (a) (4), a defendantmust overcome the presumption raised by the process server's affidavit of service (see Machovec v Svoboda, 120 AD3d772, 773 [2014]). A sworn denial containing a detailed and specific contradiction of theallegations in the process server's affidavit [*2]will defeat thepresumption of proper service (see Machovec v Svoboda, 120 AD3d at 773; Deutsche Bank Natl. Trust Co. vDaCosta, 97 AD3d 630, 631 [2012]; Bankers Trust Co. of Cal. v Tsoukas, 303AD2d 343, 344 [2003]). If the presumption is rebutted, a hearing to determine the propriety ofservice of process is necessary. At the hearing, the burden is on the plaintiff to prove jurisdictionby a preponderance of the evidence (see Machovec v Svoboda, 120 AD3d at 773; Matter of Romero v Ramirez, 100AD3d 909, 910 [2012]; TikvahEnters., LLC v Neuman, 80 AD3d 748, 749 [2011]).
Where service is effected pursuant to CPLR 308 (4), the affix and mail method, the plaintiffmust demonstrate that the summons was affixed to the door of the dwelling place or usual placeof abode of the person to be served and mailed to such person's last known residence (seeCPLR 308 [4]). The "dwelling place" is one at which the defendant is actually residing at thetime of delivery (see Feinstein v Bergner, 48 NY2d 234, 241 [1979]). The "usual place ofabode" is a place at which the defendant lives with a degree of permanence and stability and towhich he intends to return (see Feinstein v Bergner, 48 NY2d at 239 n 3; Argent Mtge. Co., LLC v Vlahos, 66AD3d 721 [2009]; Merchants Ins.Group v Coutrier, 59 AD3d 602, 603 [2009]; Federal Home Loan Mtge. Corp. vVenticinque, 230 AD2d 412 [1997]).
In support of that branch of his motion which was to vacate the judgment of foreclosure andsale, the defendant produced the process server's affidavit, which demonstrated that the defendanthad purportedly been served pursuant to CPLR 308 (4) at an address in Charlotte, NorthCarolina. In his affidavit, the defendant stated that he was never personally served, that he did notreside at the North Carolina address where the process server attempted personal service andeventually affixed the papers, that he resided at the mortgaged property in Yonkers, New York,and that his estranged wife resided at the property in North Carolina, which he and his wifeowned together. In an affidavit, the defendant's estranged wife stated that she did not see anysummons and complaint affixed to her door and never received any summons and complaint inthe mail, that the defendant did not reside with her at the North Carolina address and did notreside with her in 2009 when service of process allegedly was effectuated, and that the defendantresided at the mortgaged property in Yonkers. The defendant's submissions were sufficient torebut the presumption of proper service (see Aurora Loan Servs., LLC v Gaines, 104 AD3d 885, 887 [2013];Sileo v Victor, 104 AD3d 669,670 [2013]; U.S. Bank, N.A. vArias, 85 AD3d 1014, 1016 [2011]; Engel v Boymelgreen, 80 AD3d 653, 655 [2011]). Furthermore, inreplying to contentions raised by the plaintiff in its opposition papers, the defendant submittedfurther affidavits and documentary evidence which implicated the credibility of the plaintiff'sprocess server (see Jhang v NassauUniv. Med. Ctr., 140 AD3d 1018, 1019 [2016]; Washington Mut. Bank v Holt, 113 AD3d 755, 757 [2014];U.S. Bank, N.A. v Arias, 85 AD3d at 1016). Under these circumstances, a hearing shouldhave been held before determining that branch of the defendant's motion which was to vacate thejudgment of foreclosure and sale. Accordingly, the matter must be remitted to the SupremeCourt, Westchester County, for a hearing to determine whether the defendant was properlyserved with process pursuant to CPLR 308 (4), and for a new determination thereafter of thatbranch of his motion which was to vacate the judgment of foreclosure and sale. Chambers, J.P.,Roman, LaSalle and Barros, JJ., concur.