Opinion
2017–00534 Index No. 22327/09
12-26-2018
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Respondent, v. Rudy E. ALVERADO, et al., Appellants, et al., Defendants.
Biolsi Law Group, P.C., New York, N.Y. (Steven A. Biolsi of counsel), for appellants. Rosicki, Rosicki & Associates P.C., Plainview, N.Y. (Lijue T. Philip and William Jennings of counsel), for respondent.
Biolsi Law Group, P.C., New York, N.Y. (Steven A. Biolsi of counsel), for appellants.
Rosicki, Rosicki & Associates P.C., Plainview, N.Y. (Lijue T. Philip and William Jennings of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the appeal by the defendant Danilo Ramos is dismissed, as he is not aggrieved by the portion of the order and judgment of foreclosure and sale appealed from; and it is further,
ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from by the defendant Rudy E. Alverado, on the law, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine whether the defendant Rudy E. Alverado was properly served with copies of the summons and complaint pursuant to CPLR 308(1), and, thereafter, a new determination of his cross motion; and it is further,
ORDERED that one bill of costs is awarded to the defendant Rudy E. Alverado.
In this action to foreclose a mortgage, the defendant Rudy E. Alverado failed to appear or answer the complaint. The plaintiff moved, inter alia, for summary judgment on the complaint. In support of the motion, the plaintiff submitted, among other things, the affidavits of a process server who stated that he delivered the summons and complaint to the defendant Danilo Ramos and to Alverado at a certain location on Gotham Avenue in Elmont. In an order dated June 25, 2012, the Supreme Court granted the motion.
The plaintiff moved, inter alia, for a judgment of foreclosure and sale. Alverado then cross-moved to vacate his default pursuant to CPLR 5015(a)(4), and to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(8), on the ground that he was never properly served. In support, he submitted his own affidavit, in which he denied receiving service of process, and denied being present at the location listed in the process server's affidavit. He stated that, at the time of the alleged service, he was at work at another specified location. He added that, even if he had been home at that time and date, he would not have been at the Gotham Avenue location listed in the process server's affidavit, because he was living at the subject property located on Randall Avenue in Elmont.
In an order and judgment of foreclosure and sale entered November 17, 2016, the Supreme Court, in effect, denied Alverado's cross motion to vacate his default and to dismiss the complaint insofar as asserted against him. "The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void" ( Washington Mut. Bank v. Murphy, 127 A.D.3d 1167, 1173–1174, 10 N.Y.S.3d 95 [internal citations omitted] ).
"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 ). To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server's affidavit of service (see Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 776, 51 N.Y.S.3d 523 ). "Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing" ( U.S. Bank, N.A., v. Tauber, 140 A.D.3d 1154, 1155, 36 N.Y.S.3d 144 [internal citations omitted] ). A determination as to whether service was properly made pursuant to CPLR 308(1), as here, turns on issues of credibility, which should be determined by a hearing (see FV–1, Inc. v. Reid, 138 A.D.3d 922, 924, 31 N.Y.S.3d 119 ). Here, since Alverado's sworn denial of receipt of process contained specific facts to rebut the statements in the process server's affidavit, the presumption of proper service was rebutted and an evidentiary hearing was required (see FV–1, Inc. v. Reid, 138 A.D.3d at 924, 31 N.Y.S.3d 119 ; Velez v. Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84 ; cf. Bank of Am., N.A., v. Latif, 148 A.D.3d 967, 969, 50 N.Y.S.3d 437 ; Engel v. Boymelgreen, 80 A.D.3d 653, 655, 915 N.Y.S.2d 596 ).
RIVERA, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.