Opinion
2020-472 K C
04-22-2022
Thornton Americas Holdings (U.S.), LLC, Respondent, v. Elton Waldron, Appellant.
Brooklyn Bar Association Volunteer Lawyers Project, Inc., Jennifer Cook of counsel, for appellant. Rubin & Rothman, LLC, Aaron T. Deacon and Eric Pillischer of counsel, for respondent.
Unpublished Opinion
Brooklyn Bar Association Volunteer Lawyers Project, Inc., Jennifer Cook of counsel, for appellant.
Rubin & Rothman, LLC, Aaron T. Deacon and Eric Pillischer of counsel, for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ.
Appeal from an amended order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered January 16, 2020. The amended order denied defendant's motion to vacate a judgment of that court entered June 1, 2009 upon his failure to appear or answer the complaint and to restore the case to the calendar.
ORDERED that, on the court's own motion, the notice of appeal from the order entered December 13, 2019 is deemed a premature notice of appeal from the amended order entered January 16, 2020 (see CPLR 5520 [c]); and it is further, ORDERED that the amended order is affirmed, without costs.
In this action to recover upon a credit card debt, defendant failed to appear or answer the complaint and, on June 1, 2009, a default judgment was entered against him. Approximately 10 years later, after defendant's bank account was restrained, defendant moved, pursuant to CPLR 5015 (a) (4), to vacate the default judgment and dismiss the complaint, alleging a lack of personal jurisdiction or, in the alternative, pursuant to CPLR 5015 (a) (1), to vacate the default judgment based on a reasonable excuse for his default and a meritorious defense. Plaintiff opposed defendant's motion. Defendant's appeal from an order of the Civil Court entered December 13, 2019 denying his motion is deemed to be from an amended order entered January 16, 2020 (see CPLR 5520 [c]).
To the extent that defendant asserted a lack of personal jurisdiction as a ground for vacating the default judgment (see CPLR 5015 [a] [4]), it is well established that a process server's affidavit alleging proper service constitutes prima facie evidence of such service, and, in order to rebut this showing and raise an issue of fact necessitating a traverse hearing, the party disputing service is required to submit a sworn, factually specific denial of service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719, 719 [2014]; U.S. Bank, N.A. v Arias, 85 A.D.3d 1014, 1015 [2011]; Daimler Trust v Ferro, 58 Misc.3d 152 [A], 2018 NY Slip Op 50116[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Here, plaintiff made a prima facie showing of proper service by submitting the process server's affidavit of service, which alleged that the summons and complaint had been left with defendant's relative, Wanda Waldron, who was a person of suitable age and discretion, at defendant's usual place of abode and that another copy had been mailed to defendant's last known residence (see CPLR 308 [2]; Nationstar Mtge., LLC v Kamil, 155 A.D.3d 966, 967 [2017]; LaSalle Bank N.A. v Calle, 153 A.D.3d 801, 802 [2017]; Daimler Trust v Ferro, 2018 NY Slip Op 50116[U]). Defendant admitted that he had lived at the address where service was effectuated, failed to provide documentation to support his claim that he had moved to another address or to state when such move had occurred, and did not deny that he had a relative named Wanda Waldron, who matched the physical description in the process server's affidavit. Defendant's unsubstantiated denial was insufficient to rebut the presumption of service (see U.S. Bank N.A. v Nakash, 195 A.D.3d 651, 652 [2021]; McCraley v Shvartsman, 174 A.D.3d 795, 796 [2019]; Wells Fargo Bank, N.A. v Christie, 83 A.D.3d 824, 825 [2011]) or to establish defendant's entitlement to a traverse hearing (see HSBC Bank USA v Archer, 173 A.D.3d 984, 985 [2019]; Nationstar Mtge., LLC v Dekom, 161 A.D.3d 995, 996 [2018]).
To be relieved of his default pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 [1986]; Torres v DeJesus, 197 A.D.3d 1260 [2021]; Hawthorne Gardens Owners Corp. v Jacobs, 47 Misc.3d 148 [A], 2015 NY Slip Op 50822[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). The determination of what constitutes a reasonable excuse sufficient to open a default lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 A.D.2d 494 [2000]; see also Harcztark v Drive Variety, Inc., 21 A.D.3d 876, 876-877 [2005]). In this case, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant had failed to demonstrate a reasonable excuse for his default. In light of this conclusion, we do not consider whether defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Tlais v Cinozgumes, 189 A.D.3d 1293, 1294 [2020]; Lane v Smith, 84 A.D.3d 746, 748 [2011]).
We reach no other issue.
Accordingly, the amended order is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.