Bedessee Imports, Inc. v. Najjar

• Decision Date: 06 March 2019
• Docket Number: 2017–04627,Index No. 505930/14
• Citation: 95 N.Y.S.3d 577,170 A.D.3d 640
• Parties: BEDESSEE IMPORTS, INC., Appellant, v. Anwar NAJJAR, Respondent.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 640

95 N.Y.S.3d 577

BEDESSEE IMPORTS, INC., Appellant,

v.Anwar NAJJAR, Respondent.

2017–04627

Index No. 505930/14

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

Argued - October 22, 2018

March 6, 2019

Samuel Friedman, P.C., New York, NY, for appellant.

MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion to vacate the judgment dated June 26, 2015, is denied.

On June 27, 2014, the plaintiff commenced this action to recover on a promissory note. In July 2014, the plaintiff's process server served the defendant pursuant to CPLR 308(2) by delivering a copy of the summons and complaint to a person of suitable age and discretion at the defendant's residence in Brooklyn, and by mailing a copy to the same address. On August 8, 2014, the plaintiff mailed a copy of the summons and complaint to the defendant's residence in Brooklyn pursuant to CPLR 3215(g)(3)(i). After the defendant failed to appear or answer the complaint, the plaintiff moved for leave to enter a default judgment. On June 26, 2015, the Supreme Court issued a default judgment. Thereafter, the court granted the defendant's motion to vacate the default judgment. The plaintiff appeals.

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) (see HSBC Bank USA, N.A. v. Daniels, 163 A.D.3d 639, 640, 81 N.Y.S.3d 584 ; HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d 860, 27 N.Y.S.3d 192 ; Roberts v. Anka, 45 A.D.3d 752, 753, 846 N.Y.S.2d 280 ).

A process server's affidavit of service ordinarily constitutes prima facie evidence of service of the summons and complaint pursuant to CPLR 308(2) (see Sass Muni IV DTR v. Braxter, 143 A.D.3d 798, 799, 38 N.Y.S.3d 913 ; Wachovia Bank, N.A. v. Carcano, 106 A.D.3d 726, 964 N.Y.S.2d 246 ; Roberts v. Anka, 45 A.D.3d at 754, 846 N.Y.S.2d 280 ). The process server's affidavit asserted that the summons and complaint were delivered to a female cotenant of the defendant, who was a person of suitable age and discretion and whose physical description was set forth in detail, at the undisputed residence of the defendant, followed by the required mailing. The process server's affidavit established, prima facie, that the defendant was properly served pursuant to CPLR 308(2).

In support of his motion to vacate the default judgment, the defendant denied receipt of a copy of the summons and complaint by delivery or mail, and claimed that his wife was in Lebanon on the date service was allegedly effected. However, he failed to submit an affidavit from his wife denying receipt of the summons and complaint (see Roberts v. Anka, 45 A.D.3d at 754, 846 N.Y.S.2d 280 ) or to provide a description of his wife. Even though the defendant denied that any person as described in the affidavit of service was located at his residence on the date of service, he inconsistently stated that even if such an individual received the summons and complaint, she did not give the summons and complaint to him (see Granite Mgt. & Disposition v. Sun, 221 A.D.2d 186, 187, 634 N.Y.S.2d 48 ). Furthermore, in replying to the contentions raised by the defendant in his papers, the plaintiff submitted documentary evidence establishing that the defendant's wife was in Brooklyn on the day after the summons and complaint were delivered to the defendant's residence, which implicated the defendant's credibility (see Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 778, 51 N.Y.S.3d 523 ; Jhang v. Nassau Univ. Med. Ctr., 140 A.D.3d 1018, 1019, 35 N.Y.S.3d 360 ; Washington Mut. Bank v. Holt, 113 A.D.3d 755, 757, 979 N.Y.S.2d 612 ). Under these circumstances, the defendant's jurisdictional claim was wholly conclusory, and he was not entitled to vacatur of the default judgment on the ground that jurisdiction had not been obtained over him (see Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v. Ellner, 57 A.D.3d 732, 733, 869 N.Y.S.2d 591 ; Roberts v. Anka, 45 A.D.3d at 754, 846 N.Y.S.2d 280 ).

As to that branch of the defendant's motion which was made pursuant to CPLR 5015(a)(1), the defendant failed to establish a reasonable excuse for his default, since the only excuse he proffered was that he was not served with process (see Indymac Fed. Bank FSB v. Quattrochi, 99 A.D.3d 763, 765, 952 N.Y.S.2d 239 ; Reich v. Redley, 96 A.D.3d 1038, 947 N.Y.S.2d 564 ; Pezolano v. Incorporated City of Glen Cove, 71 A.D.3d 970, 971, 896 N.Y.S.2d 685 ).

As to that branch of the defendant's motion which was made pursuant to CPLR 317, the defendant failed to demonstrate that he did not personally receive notice of the summons in time to defend the action (see SFR Funding, Inc. v. Studio Fifty Corp., 36 A.D.3d 604, 829 N.Y.S.2d 137...