| Wells Fargo Bank, N.A. v Decesare |
| 2017 NY Slip Op 06969 [154 AD3d 717] |
| October 4, 2017 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Appellant, v Angela Decesare,Also Known as Angela T. DeCesare, et al., Respondents, et al.,Defendants. |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Joseph F. Battista,Christopher P. Kohn, and Kristine Grinberg of counsel), for appellant.
Vincent Volino PLLC, Yonkers, NY (John DeAngeli of counsel), for respondent AngelaDecesare, also known as Angela T. DeCesare.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Westchester County (Ruderman, J.), dated May 29, 2016, which, upon a decision of thesame court (Smith, J.) dated March 29, 2016, made after a hearing to determine the validity ofservice of process, denied its motion, inter alia, for leave to enter a default judgment against thedefendants upon their failure to appear or answer the complaint and to appoint a referee, andgranted that branch of the cross motion of the defendant Angela Decesare, also known as AngelaT. DeCesare, which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar asasserted against her for lack of personal jurisdiction.
Ordered that the order is reversed, on the law, with costs, that branch of the cross motion ofthe defendant Angela Decesare, also known as Angela T. DeCesare, which was pursuant toCPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her for lack of personaljurisdiction is denied, and the matter is remitted to the Supreme Court, Westchester County, for adetermination on the merits of the plaintiff's motion, inter alia, for leave to enter a defaultjudgment against the defendants upon their failure to appear or answer the complaint and toappoint a referee, and a determination of the remaining branch of the cross motion of thedefendant Angela Decesare, also known as Angela T. DeCesare.
The burden of proving that personal jurisdiction was acquired over a defendant rests with theplaintiff (see Wells Fargo Bank, NA vChaplin, 65 AD3d 588, 589 [2009]). A process server's affidavit of service constitutesprima facie evidence of valid service (see Wachovia Bank, N.A. v Greenberg, 138 AD3d 984, 985[2016]; Washington Mut. Bank vHolt, 71 AD3d 670 [2010]). A mere conclusory denial of service is insufficient to rebutthe presumption of proper service arising from the process server's affidavit (see WachoviaBank, N.A. v Greenberg, 138 AD3d at 985). In order to warrant a hearing to determine thevalidity of service of process, the denial of service must be substantiated by specific, detailedfacts that contradict the affidavit of service (see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896 [2013];Bank of N.Y. v Espejo, 92 AD3d707 [2012]; Wells Fargo Bank,N.A. v Christie, 83 AD3d 824 [2011]; Associates First Capital Corp. v Wiggins, 75 AD3d 614[2010]).
[*2] Here, the affidavit of servicecontained sworn allegations reciting that service was made upon the defendant Angela Decesare,also known as Angela T. DeCesare (hereinafter the defendant), by leaving the relevant paperswith a person of suitable age and discretion, who identified himself as "John DeCesare," at thedefendant's residence, and by subsequently mailing a second copy of the papers to the defendantat the same address. The affidavit of service included a description of "John DeCesare." Contraryto the determination of the Supreme Court, the defendant's submissions failed to rebut theaffidavit of service, since they stated that the only person fitting that description who resided atthe premises was the defendant's son Richard, and Richard could not have been present at thetime of the alleged service since he was at work. The defendant's submissions did not rebut thesworn allegation that a person fitting the physical description of "John DeCesare" was present atthe residence at the time and accepted service on behalf of the defendant (see Wells Fargo Bank, N.A. v Walter,142 AD3d 992 [2016]; WashingtonMut. Bank v Huggins, 140 AD3d 858 [2016]; Roberts v Anka, 45 AD3d 752, 754 [2007]). Indeed, "[v]alidservice pursuant to CPLR 308 (2) may be made by delivery of the summons and complaint to aperson of suitable age and discretion who answers the door at a defendant's residence, but is not aresident of the subject property" (Bank of N.Y. v Espejo, 92 AD3d at 708). Moreover, thedefendant did not deny that she received the papers in the mail and thus did not overcome theinference of proper mailing that arose from the affidavit of service (see Washington Mut. Bank v Huggins,140 AD3d 858 [2016]). Accordingly, a hearing to determine the validity of service ofprocess was not warranted under the circumstances of this case (see id.), and the SupremeCourt should have denied that branch of the defendant's cross motion which was pursuant toCPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her for lack of personaljurisdiction.
The Supreme Court denied the plaintiff's motion, inter alia, for leave to enter a defaultjudgment against the defendants upon their failure to appear or answer the complaint and toappoint a referee based on its determination that personal jurisdiction was not obtained over thedefendant. Moreover, the court did not consider the remaining branch of the defendant's crossmotion. Accordingly, we remit the matter to the Supreme Court, Westchester County, for adetermination on the merits of the plaintiff's motion and the remaining branch of the defendant'scross motion (see Everhome Mtge. Co. vBerger, 151 AD3d 811, 813 [2017]). Dillon, J.P., Chambers, Cohen and Iannacci, JJ.,concur.