| U.S. Bank N.A. v Telford |
| 2017 NY Slip Op 06314 [153 AD3d 881] |
| August 23, 2017 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee for the StructuredAsset Investment Loan Trust, 2006-1, Appellant, v Jillian Telford, Respondent, et al.,Defendants. |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Joseph F. Battistaand Christopher Kohn of counsel), for appellant.
Berg & David, PLLC, Brooklyn, NY (Abraham David of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (King, J.), dated September 8, 2015, which denied its motion for ajudgment of foreclosure and sale and to appoint a referee to conduct a sale of the subjectpremises, and granted those branches of the cross motion of the defendant Jillian Telford whichwere to vacate an order of reference and default judgment of the same court dated September 23,2014, entered upon her failure to appear in the action or answer the complaint, and for leave toserve a late answer.
Ordered that the order dated September 8, 2015, is reversed, on the law, with costs, theplaintiff's motion for a judgment of foreclosure and sale and to appoint a referee to conduct a saleof the subject premises is granted, and those branches of the cross motion of the defendant JillianTelford which were to vacate the order of reference and default judgment dated September 23,2014, and for leave to serve a late answer are denied.
The Supreme Court should have denied that branch of the defendant Jillian Telford's crossmotion which was pursuant to CPLR 5015 (a) (4) to vacate the order of reference and defaultjudgment entered upon her failure to appear or answer the complaint for lack of personaljurisdiction. The process server's affidavit of service constituted prima facie evidence of serviceof the summons and complaint pursuant to CPLR 308 (2), and Telford's bare and unsubstantiateddenial of receipt was insufficient to rebut the presumption of proper service (see Washington Mut. Bank v Huggins,140 AD3d 858, 859 [2016]; Bankof N.Y. v Espejo, 92 AD3d 707, 708 [2012]; Roberts v Anka, 45 AD3d 752, 754 [2007]; cf. Wachovia Bank, N.A. v Greenberg,138 AD3d 984, 985 [2016]). Telford failed to dispute the physical characteristics of theperson served and failed to deny receipt of the mailed copies of the summons and complaint.
Regarding that branch of Telford's cross motion which was to vacate the order of referenceand default judgment pursuant to CPLR 5015 (a) (1), Telford failed to demonstrate a reasonableexcuse for her default since the only excuse she proffered was that she was not served withprocess (see Matter of Foreclosure ofTax Liens, 144 AD3d 1033, 1034 [2016]; Sass Muni IV DTR v Braxter, 143 AD3d 798, 799 [2016]). Theabsence of a reasonable excuse for the default renders it [*2]unnecessary to determine whether she demonstrated the existenceof a potentially meritorious defense (seeBank of Am., N.A. v Agarwal, 150 AD3d 651 [2017]; Sass Muni IV DTR vBraxter, 143 AD3d at 799). Accordingly, the Supreme Court should have denied that branchof Telford's cross motion which was pursuant to CPLR 5015 (a) (1) to vacate the order ofreference and default judgment.
For the same reasons, the plaintiff's motion for a judgment of foreclosure and sale and toappoint a referee to conduct a sale of the subject premises should have been granted (see Wells Fargo Bank, N.A. v Stewart,146 AD3d 921, 922 [2017]). Dillon, J.P., Roman, Miller and LaSalle, JJ., concur.