Cmty. W. Bank, N.A. v. Stephen

• Citation: 2015 N.Y. Slip Op. 03312,127 A.D.3d 1008,9 N.Y.S.3d 275
• Decision Date: 22 April 2015
• Docket Number: 2013-08012, Index No. 5540/09.
• Parties: COMMUNITY WEST BANK, N.A., etc., respondent, v. Cheryl STEPHEN, etc., et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1008

9 N.Y.S.3d 275

2015 N.Y. Slip Op. 03312

COMMUNITY WEST BANK, N.A., etc., respondent

v.Cheryl STEPHEN, etc., et al., appellants, et al., defendants.

2013-08012, Index No. 5540/09.

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

April 22, 2015.

Berg & David, PLLC, Brooklyn, N.Y. (Abraham David of counsel), for appellants.

Zeichner Ellman & Krause, LLP, New York, N.Y. (Anna S. Park of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

Opinion

In an action, inter alia, to foreclose a mortgage, the defendants Cheryl Stephen and Monica Joseph appeal from an order of the Supreme Court, Kings County (Ash, J.), dated June 10, 2013, which denied their motion pursuant to CPLR 5015(a)(1) and (4) to vacate a judgment of foreclosure and sale dated January 15, 2013, entered upon their default in appearing and answering the complaint, and, thereupon, to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

This action was commenced by filing a summons and complaint dated March 5, 2009. The defendants Cheryl Stephen and Monica Joseph (hereinafter together the moving defendants), failed to timely appear or answer. A judgment of foreclosure and sale was entered upon the moving defendants' default. The moving defendants thereafter moved to vacate the judgment pursuant to CPLR 5015(a)(1) and (4), and, thereupon, to dismiss the complaint insofar as asserted against them. The Supreme Court denied their motion.

“When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the 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) ” (Canelas v. Flores, 112 A.D.3d 871, 871, 977 N.Y.S.2d 362 ; see HSBC Bank USA, N.A. v. Miller, 121 A.D.3d 1044, 1045, 995 N.Y.S.2d 198 ). Here, the affidavit of the plaintiff's process server constituted prima facie evidence of proper service pursuant to CPLR 308(1) (see Deutsche Bank Natl. Trust Co. v. Quinones, 114 A.D.3d 719, 719, 981 N.Y.S.2d 107 ; Loaiza v. Guzman, 111 A.D.3d 608, 609, 974 N.Y.S.2d 282 ; Citimortgage, Inc. v. Bustamante, 107 A.D.3d 752, 753, 968 N.Y.S.2d 513 ). The only evidence submitted by the moving defendants to rebut the process server's affidavit was an affidavit in which Joseph stated that she “was never served with a summons or complaint in the instant action.” This bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the affidavit of service (see Deutsche Bank Natl. Trust Co. v. Quinones, 114 A.D.3d at 719, 981 N.Y.S.2d 107 ; U.S. Bank N.A. v. Tate, 102 A.D.3d 859, 859–860, 958 N.Y.S.2d 722 ; ACT Props., LLC v. Garcia, 102 A.D.3d 712, 713, 957 N.Y.S.2d 884 ).

Furthermore, insofar as the moving defendants moved pursuant to CPLR 5015(a)(1) to vacate their default, they failed to establish a reasonable excuse for their default, since the only excuse they proffered was that Joseph was not served with process (see HSBC Bank USA, N.A. v. Miller, 121 A.D.3d at 1046, 995 N.Y.S.2d 198 ; Bank of N.Y. v. Samuels, 107 A.D.3d 653, 654, 968 N.Y.S.2d 93 ; Reich v. Redley, 96 A.D.3d 1038, 1039, 947...