Bank of N.Y. v. Samuels

• Decision Date: 05 June 2013
• Citation: 107 A.D.3d 653,968 N.Y.S.2d 93,2013 N.Y. Slip Op. 03958
• Parties: BANK OF NEW YORK, etc., respondent, v. Andrea SAMUELS, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 653

968 N.Y.S.2d 93

2013 N.Y. Slip Op. 03958

BANK OF NEW YORK, etc., respondent,

v.Andrea SAMUELS, appellant, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

June 5, 2013.

Walter T. Ramsey, Brooklyn, N.Y., for appellant.

Davidson Fink, LLP, Rochester, N.Y. (Larry T. Powell of counsel), for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to foreclose a mortgage, the defendant Andrea Samuels appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered August 18, 2011, which denied, without a hearing, her motion pursuant to CPLR 5015 and CPLR 317 to vacate a judgment of foreclosure and sale of the same court (Nicolai, J.), dated September 24, 2008, upon her default in answering or appearing.

ORDERED that the order is affirmed, with costs.

Contrary to the appellant's contention, the Supreme Court properly denied, without a hearing, that branch of her motion which was pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale. The process server's affidavits of service constituted prima facie evidence that the appellant was validly served pursuant to CPLR 308(2) ( see U.S. Consults v. APG, Inc., 82 A.D.3d 753, 753, 917 N.Y.S.2d 911;Bank of N.Y. v. Segui, 68 A.D.3d 908, 909, 890 N.Y.S.2d 830;Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v. Ellner, 57 A.D.3d 732, 732, 869 N.Y.S.2d 591;Bankers Trust Co. Of Cal. v. Tsoukas, 303 A.D.2d 343, 343–344, 756 N.Y.S.2d 92). “Although 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, no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server's affidavits' ” ( Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682 [citationomitted], quoting Simonds v. Grobman, 277 A.D.2d 369, 370, 716 N.Y.S.2d 692;see Matter of Romero v. Ramirez, 100 A.D.3d 909, 955 N.Y.S.2d 353;Indymac Fed. Bank FSB v. Quattrochi, 99 A.D.3d 763, 952 N.Y.S.2d 239;Tikvah Enters., LLC v. Neuman, 80 A.D.3d 748, 749, 915 N.Y.S.2d 508). Since the appellant never denied the specific facts contained in the process server's affidavit, no hearing was required ( see Christiana Bank & Trust Co. v. Eichler, 94 A.D.3d 1170, 1170–1171, 942 N.Y.S.2d 241;cf. Toyota Motor Credit Corp. v. Lam, 93 A.D.3d 713, 714, 939 N.Y.S.2d 869;Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254). Moreover, insofar as the appellant moved pursuant to CPLR 5015(a)(1) to vacate her default, she “ ‘failed to establish a reasonable excuse for [her] default since the only excuse [she] proffered was that [she] was not served with process' ” ( Reich v. Redley, 96 A.D.3d 1038, 1039, 947 N.Y.S.2d 564, quoting Stephan B. Gleich & Assoc. v. Gritsipis, 87 A.D.3d 216, 221, 927 N.Y.S.2d 349).

Similarly, the appellant was not entitled to relief under CPLR 317 since she failed to demonstrate that she did not receive actual notice of the summons and complaint in time to defend ( see Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 753, 941 N.Y.S.2d 679;393 Lefferts Partners, LLC v. New York Ave. at Lefferts, LLC, 68 A.D.3d 976, 977, 890 N.Y.S.2d 330). “The mere denial of receipt of the summons and complaint is ... insufficient ‘to establish lack...