Opinion
2019–10851 Index No. 4047/13
09-16-2020
Priyadeep AHLUWALIA, respondent, v. Chandrika SEECHARAN, appellant.
Joel A. Perlmutter, Bronx, NY, for appellant. Warren S. Hecht, Forest Hills, NY, for respondent.
Joel A. Perlmutter, Bronx, NY, for appellant.
Warren S. Hecht, Forest Hills, NY, for respondent.
RUTH C. BALKIN, J.P., COLLEEN D. DUFFY, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In an action to annul a marriage, the defendant appeals from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), entered July 24, 2019. The order denied the defendant's motion pursuant to CPLR 5015(a)(3) and (4) to vacate a judgment of annulment of the same court entered January 23, 2014, upon his failure to appear or answer the complaint.
ORDERED that the order entered July 24, 2019, is affirmed, with costs.
In 2013, the plaintiff commenced this action to annul her marriage to the defendant. On March 8, 2013, the defendant was served with a copy of the summons with notice pursuant to CPLR 308(1) at the parties' former marital residence in Queens. After the defendant failed to answer or appear in the action, the plaintiff moved for a default judgment of annulment. The Supreme Court granted the motion, and entered a default judgment on January 23, 2014. By order to show cause dated March 19, 2019, the defendant moved, inter alia, pursuant to CPLR 5015(a)(3) and (4) to vacate the judgment. By order entered July 24, 2019, the court denied his motion. The defendant appeals.
"Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" ( Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ). A defendant's sworn denial of receipt of service rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing where the defendant swears to specific facts to rebut the statements in the affidavit of service (see Bank of N.Y. v. Samuels, 107 A.D.3d 653, 653–654, 968 N.Y.S.2d 93 ). However, "no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit of service" ( Wells Fargo Bank, N.A. v. Leonardo, 167 A.D.3d 816, 817, 90 N.Y.S.3d 199 ; see Rodriguez v. 60 Graham, LLC, 173 A.D.3d 1095, 1095–1096, 100 N.Y.S.3d 555 ; HSBC Bank USA, N.A. v. Powell, 148 A.D.3d 1123, 51 N.Y.S.3d 116 ). Here, the process server's affidavit of service constituted prima facie evidence of proper service of the summons with notice pursuant to CPLR 308(1), and the defendant's bare and unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service (see Wells Fargo Bank, N.A. v. Kohn, 137 A.D.3d 897, 28 N.Y.S.3d 80 ; U.S. Bank N.A. v. Tate, 102 A.D.3d 859, 958 N.Y.S.2d 722 ). Moreover, the record contains no evidence of fraud or misrepresentation (see Wells Fargo Bank, N.A. v. Gioia, 114 A.D.3d 766, 767, 980 N.Y.S.2d 535 ; Deutsche Bank Natl. Trust Co. v. Hunter, 100 A.D.3d 810, 954 N.Y.S.2d 181 ). Accordingly, we agree with the Supreme Court's determination denying the defendant's motion pursuant to CPLR 5015(a)(3) and (4) to vacate the judgment.
BALKIN, J.P., DUFFY, LASALLE and CONNOLLY, JJ., concur.