Opinion
2013-04773
05-06-2015
SUMMITBRIDGE CREDIT INVESTMENTS, LLC, respondent, v. William Timothy WALLACE, et al., appellants, et al., defendants; Barry Skolnick, intervenor-respondent.
Morrison Cohen LLP, New York, N.Y. (Y. David Scharf and David A. Piedra of counsel), for appellants. Buchanan Ingersoll & Rooney P.C., Buffalo, N.Y. (Christopher P. Schueller of counsel), for respondent. Margolin & Weinreb Law Group, Syosset, N.Y. (Alan Weinreb of counsel), for intervenor-respondent.
Morrison Cohen LLP, New York, N.Y. (Y. David Scharf and David A. Piedra of counsel), for appellants.
Buchanan Ingersoll & Rooney P.C., Buffalo, N.Y. (Christopher P. Schueller of counsel), for respondent.
Margolin & Weinreb Law Group, Syosset, N.Y. (Alan Weinreb of counsel), for intervenor-respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Opinion In an action to foreclose a mortgage, the defendants William Timothy Wallace and Fathia Zouiyen appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated March 27, 2013, which denied their motion, inter alia, pursuant to CPLR 5015 to vacate a judgment of foreclosure and sale of the same court (R. Doyle, J.) entered November 14, 2011, upon their failure to appear or answer, and to set aside the sale of the subject property.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly denied the appellants' motion, inter alia, pursuant CPLR 5015(a) to vacate the judgment of foreclosure and sale entered upon their default in appearing or answering, and to set aside the sale of the subject property.
The appellants failed to demonstrate their entitlement to vacatur pursuant to CPLR 5015(a)(4) for lack of personal jurisdiction. A process server's affidavit of service constitutes prima facie evidence of proper service (see U.S. Bank N.A. v. Hasan, 126 A.D.3d 683, 684, 5 N.Y.S.3d 460 ; Deutsche Bank Natl. Trust Co. v. Quinones, 114 A.D.3d 719, 981 N.Y.S.2d 107 ). Here, the plaintiff submitted affidavits of service establishing, prima facie, that the appellants were properly served pursuant to CPLR 308(2) (see F.I. duPont, Glore Forga & Co. v. Chen, 41 N.Y.2d 794, 797, 396 N.Y.S.2d 343, 364 N.E.2d 1115 ; Bank of Am., N.A. v. Grufferman, 117 A.D.3d 508, 985 N.Y.S.2d 532 ; cf. McCormack v. Goldstein, 204 A.D.2d 121, 122, 611 N.Y.S.2d 185 ). Contrary to the appellants' contention, the plaintiff's submission of supplemental affidavits of service properly cured any deficiencies in the originals (see CPLR 305[c] ; Mrwik v. Mrwik, 49 A.D.2d 750, 372 N.Y.S.2d 693 ; Air Conditioning Training Corp. v. Pirrote, 270 App.Div. 391, 60 N.Y.S.2d 35 ). The appellants failed to rebut the presumption of proper service created by the affidavits.
Contrary to the defendants' contention, the fact that the plaintiff omitted the special notice required by RPAPL 1320 from the summons it served did not deprive the Supreme Court of subject matter jurisdiction to entertain the action (see generally Deutsche Bank Trust Co. Ams. v. Shields, 116 A.D.3d 653, 654, 983 N.Y.S.2d 286 ; Pritchard v. Curtis, 101 A.D.3d 1502, 1504–1505, 957 N.Y.S.2d 440 ).
With respect to that branch of the appellants' motion which was pursuant to CPLR 5015(a)(1), the only excuse they proffered in the Supreme Court was that they were not served with process. As such, they failed to establish a reasonable excuse for their default (see U.S. Bank N.A. v. Hasan, 126 A.D.3d at 684, 5 N.Y.S.3d 460 ; Citimortgage, Inc. v. Bustamante, 107 A.D.3d 752, 753, 968 N.Y.S.2d 513 ). The absence of a reasonable excuse renders it unnecessary to determine whether the appellants demonstrated the existence of a potentially meritorious defense to the action (see U.S. Bank N.A. v. Hasan, 126 A.D.3d at 684, 5 N.Y.S.3d 460 ; Cervini v. Cisco Gen. Constr., Inc., 123 A.D.3d 1077, 1 N.Y.S.3d 195 ).
With respect to that branch of the appellants' motion which was pursuant to CPLR 5015(a)(3), they failed to demonstrate that the plaintiff engaged in any fraud, misrepresentation, or other misconduct warranting vacatur of the judgment. The appellants' conclusory allegations of fraud and misconduct were insufficient to make such a showing (see Matter of Callwood v. Cabrera, 49 A.D.3d 394, 394–395, 854 N.Y.S.2d 42 ; Rapaport v. Rapaport, 150 A.D.2d 353, 355, 543 N.Y.S.2d 263 ).
The appellants also failed to establish that the judgment should be vacated in the interests of substantial justice (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 ; HSBC Mtge. Servs. v. Talip, 111 A.D.3d 889, 890, 975 N.Y.S.2d 887 ; Mortgage Elec. Registration Sys., Inc. v. Dort–Relus, 107 A.D.3d 861, 862, 968 N.Y.S.2d 117 ).
The parties' remaining contentions are either improperly raised for the first time on appeal, based on matter dehors the record, or without merit.