Opinion
2022-01570 Index No. 624996/19
05-10-2023
TUTTNAUER USA CO., LTD., respondent, v. Barbara RUSSO, et al., appellants.
Frederick K. Brewington (Edelstein & Grossman, New York, NY [Jonathan I. Edelstein ], of counsel), for appellants. Ruskin, Moscou, Faltischek, P.C., Uniondale, NY (David A. Robins and Brian Passarelle of counsel), for respondent.
Frederick K. Brewington (Edelstein & Grossman, New York, NY [Jonathan I. Edelstein ], of counsel), for appellants.
Ruskin, Moscou, Faltischek, P.C., Uniondale, NY (David A. Robins and Brian Passarelle of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, JOSEPH A. ZAYAS, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for conversion, the defendants appeal from an order of the Supreme Court, Suffolk County (Kathy G. Bergmann, J.), dated August 5, 2021. The order denied the defendants’ motion, inter alia, to vacate an order of the same court dated May 21, 2021, granting the plaintiff's unopposed motion for leave to enter a default judgment against the defendants and directing an inquest.
ORDERED that the order dated August 5, 2021, is affirmed, with costs.
In December 2019, the plaintiff commenced this action against the defendants, alleging, inter alia, a cause of action to recover damages for conversion. It is undisputed that the defendants defaulted in answering the complaint. By order dated May 21, 2021, the Supreme Court granted the plaintiff's unopposed motion for leave to enter a default judgment against the defendants and directed an inquest. In July 2021, the defendants moved to vacate the order dated May 21, 2021, in effect, pursuant to CPLR 5015(a)(1) and (4), and for related relief. By order dated August 5, 2021, the Supreme Court denied the defendants’ motion. The defendants appeal.
"Where, as here, a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" ( HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d 860, 862–863, 27 N.Y.S.3d 192 [internal quotation marks omitted]; see PNC Bank, N.A. v. Bannister, 161 A.D.3d 1114, 1115, 77 N.Y.S.3d 452 ; Wachovia Bank, N.A. v. Greenberg, 138 A.D.3d 984, 985, 31 N.Y.S.3d 110 ).
A process server's affidavit of service constitutes prima facie evidence of proper service (see HSBC Bank USA, N.A. v. Whitter, 159 A.D.3d 942, 945, 74 N.Y.S.3d 285 ; U.S. Bank, N.A. v. Tauber, 140 A.D.3d 1154, 1155, 36 N.Y.S.3d 144 ; US Natl. Bank Assn. v. Melton, 90 A.D.3d 742, 743, 934 N.Y.S.2d 352 ). 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 HSBC Bank USA v. Archer, 173 A.D.3d 984, 985, 104 N.Y.S.3d 150 ; HSBC Bank USA, N.A. v. Whitter, 159 A.D.3d at 945, 74 N.Y.S.3d 285 ). A sworn denial of receipt of service containing "detailed and specific contradiction of the allegations in the process server's affidavit" will defeat the presumption of proper service ( Machovec v. Svoboda, 120 A.D.3d 772, 773, 992 N.Y.S.2d 279 ; see Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 776–777, 51 N.Y.S.3d 523 ). However, bare and unsubstantiated denials of service are insufficient to rebut the presumption of proper service created by a duly executed affidavit of service, and a hearing is not required where "the defendant fails to swear to specific facts rebutting the statements in the process server's affidavit" ( US Natl. Bank Assn. v. Melton, 90 A.D.3d at 743, 934 N.Y.S.2d 352 ; see U.S. Bank N.A. v. Smith, 210 A.D.3d 725, 727, 177 N.Y.S.3d 659 ; U.S. Bank, N.A. v. Arias, 85 A.D.3d 1014, 1015, 927 N.Y.S.2d 362 ; Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682 ).
Here, the process server's affidavits of personal service upon the defendant Barbara Russo (hereinafter Barbara) and substituted service upon the other defendants by service upon Barbara as a person of suitable age and discretion, constituted prima facie evidence of proper service on the defendants. The claimed discrepancies between Barbara's appearance and the description in the process server's affidavits were minor and insufficiently substantiated to warrant a hearing (see U.S. Bank N.A. v. Bienenstock, 184 A.D.3d 593, 594, 123 N.Y.S.3d 501 ; PNC Bank, N.A. v. Bannister, 161 A.D.3d at 1115–1116, 77 N.Y.S.3d 452 ; Wells Fargo Bank, N.A. v. Tricarico, 139 A.D.3d 722, 723, 32 N.Y.S.3d 213 ). In addition, the defendants’ assertions that Barbara would not have been at home at the time service was allegedly made were conclusory and unsubstantiated (see U.S. Bank N.A. v. Smith, 210 A.D.3d at 727, 177 N.Y.S.3d 659 ; Deutsche Bank Natl. Trust Co. v. Kenol, 205 A.D.3d 1004, 1005, 166 N.Y.S.3d 881 ; HSBC Bank USA, N.A. v. Rahmanan, 194 A.D.3d 792, 794, 149 N.Y.S.3d 131 ; Nationstar Mtge., LLC v. Cohen, 185 A.D.3d 1039, 1041, 128 N.Y.S.3d 574 ).
To the extent that the defendants’ motion sought vacatur pursuant to CPLR 5015(a)(1), they were not entitled to such relief, as they failed to set forth a reasonable excuse for their default (see PNC Bank, N.A. v. Bannister, 161 A.D.3d at 1116, 77 N.Y.S.3d 452 ). Thus, it is unnecessary to consider whether they sufficiently demonstrated a potentially meritorious defense (see U.S. Bank N.A. v. Pierre, 210 A.D.3d 929, 930, 179 N.Y.S.3d 129 ).
Accordingly, the Supreme Court properly denied the defendants’ motion.
CONNOLLY, J.P., MALTESE, ZAYAS and TAYLOR, JJ., concur.