| US Bank N.A. v Ramos |
| 2017 NY Slip Op 06315 [153 AD3d 882] |
| August 23, 2017 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association, as Trustee for CSMC ARMT2006-3, 3476 State Blvd Fort Mill, SC 29715, Respondent, v Francisco Ramos et al.,Appellants, et al., Defendants. |
Steve C. Okenwa, New York, NY, for appellants.
Hogan Lowells US, LLP, New York, NY (Suzanne Novak of counsel), for respondent.
Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), datedDecember 15, 2015. The order, insofar as appealed from, denied, without a hearing, thosebranches of the motion of the defendants Francisco Ramos and Gabriella Medrano which werepursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure and sale of that court datedNovember 10, 2014, entered upon their failure to appear or answer the complaint, and pursuantto CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them.
Ordered that the order dated December 15, 2015, is modified, on the law, by deleting theprovision thereof denying those branches of the motion of the defendants Francisco Ramos andGabriella Medrano which were pursuant to CPLR 5015 (a) (4) to vacate the judgment offoreclosure and sale dated November 10, 2014, insofar as entered against the defendant GabriellaMedrano upon her failure to appear or answer the complaint, and pursuant to CPLR 3211 (a) (8)to dismiss the complaint insofar as asserted against her; as so modified, the order is affirmedinsofar as appealed from, without costs or disbursements, and the matter is remitted to theSupreme Court, Nassau County, for a hearing on the issue of whether the defendant GabriellaMedrano was properly served with process pursuant to CPLR 308 (2) and, thereafter, a newdetermination of those branches of the motion of the defendants Francisco Ramos and GabriellaMedrano, and, if warranted, a determination of that branch of the plaintiff's cross motion whichwas pursuant to CPLR 306-b to extend its time to serve the defendant Gabriella Medrano.
The plaintiff commenced this action to foreclose a mortgage against, among others, thedefendants Francisco Ramos and Gabriella Medrano (hereinafter together the defendants).According to the affidavits of service, Ramos was served with copies of the summons andcomplaint at his home, the mortgaged premises in Roosevelt (hereinafter the subject property),on March 11, 2009, by delivering a copy of the summons and complaint to "Alicea Ramos,"referred to as his wife, and by the subsequent mailing of an additional copy of the summons andcomplaint to the same address, all pursuant to CPLR 308 (2). Medrano allegedly was served withcopies of the summons and complaint at an address in New Hyde Park on March 10, 2009, bydelivery of a copy of the summons and complaint to a person referred to as her sister, and by thesubsequent mailing of an additional copy of the summons and complaint to the sameaddress.
[*2] The defendants neither answered thecomplaint nor otherwise appeared in this action. On November 10, 2014, the Supreme Courtentered a judgment of foreclosure and sale upon the defendants' default. On May 19, 2015, thesubject property was sold at an auction to the plaintiff as the highest bidder. On July 21, 2015,the defendants moved, among other things, to vacate the judgment of foreclosure and sale, and todismiss the complaint insofar as asserted against them for lack of personal jurisdiction. OnAugust 10, 2015, the plaintiff cross-moved, inter alia, pursuant to CPLR 306-b to extend its timeto serve the defendants in the event the court found that service was defective. In the orderappealed from, the court denied those branches of the defendants' motion.
"Ordinarily, a process server's affidavit of service establishes a prima facie case as to themethod of service and, therefore, gives rise to a presumption of proper service" (Wells Fargo Bank, NA v Chaplin, 65AD3d 588, 589 [2009]; seeWashington Mut. Bank v Huggins, 140 AD3d 858, 859 [2016]). "Although bare andunsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial ofservice containing specific facts generally rebuts the presumption of proper service established bythe affidavit of service and necessitates a hearing" (U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155 [2016] [citationomitted]; see Bank of Am., N.A. vTobing, 145 AD3d 941, 942 [2016]; Machovec v Svoboda, 120 AD3d 772, 773 [2014]).
Here, the affidavits of the plaintiff's process server constituted prima facie evidence that thedefendants were properly served pursuant to CPLR 308 (2) (see Central Mtge. Co. v Ward, 127 AD3d 803, 803 [2015]; Roberts v Anka, 45 AD3d 752,753-754 [2007]). Contrary to the defendants' contention, their submissions failed to rebut thepresumption of proper service arising from the process server's affidavit as to service uponRamos. While the defendants and a neighbor, in sworn affidavits, denied knowledge of a personnamed "Alicea Ramos," and asserted that the defendants were the only adults living at the subjectproperty, they did not rebut the sworn allegation of the process server that a person fitting thephysical description of "Alicea Ramos" was present at the subject property at the time andaccepted service on behalf of Ramos (see Washington Mut. Bank v Huggins, 140 AD3dat 859; Bank of N.Y. v Espejo, 92AD3d 707, 708 [2012]; WellsFargo Bank, N.A. v Christie, 83 AD3d 824, 825 [2011]; cf. Wachovia Bank, N.A. v Greenberg,138 AD3d 984, 985 [2016]). Thus, a hearing to determine the validity of service of processupon Ramos was not warranted.
Medrano, however, demonstrated her entitlement to a hearing on the issue of service.Medrano's sworn denial that she resided at the premises in New Hyde Park where service uponher allegedly was made, combined with evidence supporting such claim, was sufficient to rebutthe presumption of proper service (see U.S. Bank, N.A. v Tauber, 140 AD3d at 1155;Central Mtge. Co. v Ward, 127 AD3d at 803-804; Lazarre v Davis, 109 AD3d 968, 969 [2013]; Goralski v Nadzan, 89 AD3d 801,801 [2011]). Inasmuch as neither the evidence submitted by the defendants nor the evidencerelied upon by the plaintiff is dispositive on the issue of whether service on Medrano at theaddress in New Hyde Park was proper under CPLR 308 (2), a hearing is warranted. Thus, weremit the matter to the Supreme Court, Nassau County, for a hearing to determine whetherMedrano was properly served and, thereafter, for a new determination of those branches of thedefendants' motion which were to vacate her default and to dismiss the complaint insofar asasserted against her for lack of personal jurisdiction (see U.S. Bank, N.A. v Tauber, 140AD3d at 1156; Goralski v Nadzan, 89 AD3d at 802), and, if warranted, a determinationof that branch of the plaintiff's cross motion which was pursuant to CPLR 306-b to extend itstime to serve Medrano. Leventhal, J.P., Hall, Hinds-Radix and Maltese, JJ., concur.