Opinion
2017–09958 Index No. 510650/14
06-19-2019
Tinamarie RODRIGUEZ, Appellant, v. 60 GRAHAM, LLC, et al., Defendants, City Signs, Inc., Respondent (And a Third-Party Action).
Joseph Deliso, Brooklyn, NY, for appellant. Clausen Miller P.C., New York, N.Y. (Kimberly A. Kearney, Carl M. Perri, and Matthew J. Van Dusen of counsel), for respondent.
Joseph Deliso, Brooklyn, NY, for appellant.
Clausen Miller P.C., New York, N.Y. (Kimberly A. Kearney, Carl M. Perri, and Matthew J. Van Dusen of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, BETSY BARROS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated August 10, 2017. The order granted the motion of the defendant City Signs, Inc., pursuant to CPLR 5015 to vacate an order of the same court dated March 9, 2017, granting the plaintiff's motion for leave to enter a default judgment against it.
ORDERED that the order dated August 10, 2017, is reversed, on the law, with costs, and the motion of the defendant City Signs, Inc., pursuant to CPLR 5015 to vacate the order dated March 9, 2017, is denied.
The plaintiff allegedly was injured on August 24, 2014, when a sign installed by the defendant City Signs, Inc. (hereinafter City Signs), fell from the building to which it was attached and struck her. The plaintiff commenced this personal injury action against City Signs and others. After City Signs failed to appear or answer, the Supreme Court, in an order dated March 9, 2017, granted the plaintiff's motion for leave to enter a default judgment against City Signs. Thereafter, City Signs moved pursuant to CPLR 5015 to vacate the order dated March 9, 2017. The court granted City Signs's motion, and the plaintiff 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, N.A. v. Leonardo, 167 A.D.3d 816, 817, 90 N.Y.S.3d 199 [internal quotation marks omitted]; see Chichester v. Alal–Amin Grocery & Halal Meat, 100 A.D.3d 820, 820, 954 N.Y.S.2d 577 ; Indymac Fed. Bank FSB v. Quattrochi, 99 A.D.3d 763, 764, 952 N.Y.S.2d 239 ). "To be entitled to vacatur of a default judgment ... a defendant must overcome the presumption raised by the process server's affidavit of service" ( Machovec v. Svoboda, 120 A.D.3d 772, 773, 992 N.Y.S.2d 279 ). "A defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing; 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 at 817, 90 N.Y.S.3d 199 ). The sworn denial of receipt of service must be a "detailed and specific contradiction" of the allegations in the process server's affidavit ( Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 344, 756 N.Y.S.2d 92 ; see Scarano v. Scarano, 63 A.D.3d 716, 880 N.Y.S.2d 682 ).
Here, City Signs relied on an affidavit of the individual allegedly served in support of its contention that there were discrepancies between her appearance and the description of her provided in the process server's affidavit. However, the claimed discrepancies were minor and did not warrant a hearing on the issue of service (see U.S. Bank N.A. v. Cherubin, 141 A.D.3d 514, 515–516, 36 N.Y.S.3d 154 ; Citimortgage, Inc. v. Baser, 137 A.D.3d 735, 736, 26 N.Y.S.3d 352 ; Indymac Fed. Bank, FSB v. Hyman, 74 A.D.3d 751, 751, 901 N.Y.S.2d 545 ; Wells Fargo Bank, N.A. v. McGloster, 48 A.D.3d 457, 849 N.Y.S.2d 784 ). Additionally, City Signs failed to substantiate the claimed discrepancies (see U.S. Bank N.A. v. Cherubin, 141 A.D.3d at 516, 36 N.Y.S.3d 154 ; Indymac Fed. Bank, FSB v. Hyman, 74 A.D.3d at 751, 901 N.Y.S.2d 545 ).
Accordingly, the Supreme Court should have denied City Signs's motion pursuant to CPLR 5015 to vacate the order dated March 9, 2017, granting the plaintiff's motion for leave to enter a default judgment against it.
DILLON, J.P., BALKIN, AUSTIN and BARROS, JJ., concur.