Bedessee Imports, Inc. v. Najjar

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

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

170 A.D.3d 640

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

170 A.D.3d 641

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...