HSBC Bank USA v. Archer

• Decision Date: 19 June 2019
• Docket Number: 2018–00930,Index No. 2674/10
• Citation: 104 N.Y.S.3d 150,173 A.D.3d 984
• Parties: HSBC BANK USA, etc., Respondent, v. Marlene ARCHER, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 984

104 N.Y.S.3d 150

HSBC BANK USA, etc., Respondent,

v.Marlene ARCHER, Appellant, et al., Defendants.

2018–00930

Index No. 2674/10

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

Argued—April 4, 2019

June 19, 2019

C. Steve Okenwa, P.C., New York, NY, for appellant.

Gross Polowy, LLC (Reed Smith LLP, New York, N.Y. [Andrew B. Messite and Michael V. Margarella ], of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, RUTH C. BALKIN, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Marlene Archer appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated December 6, 2017. The order, insofar as appealed from, denied the cross motion of the defendant Marlene Archer pursuant to CPLR 5015(a)(4) to vacate, insofar as against her, an order of reference of the same court dated November 20, 2013, entered upon her default, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her on the ground of lack of personal jurisdiction.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this mortgage foreclosure action by the filing of a summons and complaint dated January 29, 2010. An amended affidavit of service dated February 24, 2010, indicated that service was made upon the defendant KIDS R. WONDERFUL DAY CARE by personal delivery of the pleadings to its owner, the defendant Marlene Archer, at the address of the mortgaged premises. Archer neither answered nor appeared in the action. In 2013, the plaintiff obtained an order of reference upon Archer's default. Subsequently, in 2017, the plaintiff moved for an extension of time within which to seek a judgment of foreclosure and sale, and Archer cross-moved pursuant to CPLR 5015(a)(4) to vacate her default and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her on the ground that she was never served with process in the action. The Supreme Court granted the plaintiff's motion and denied Archer's cross motion. Archer appeals only from the denial of her cross motion.

We agree with the Supreme Court's denial of Archer's cross motion. " ‘Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service’ " ( U.S. Bank N.A. v. Langner, 168 A.D.3d 1021, 1023, 92 N.Y.S.3d 419, quoting Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ). To be entitled to vacatur of a default under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the affidavit of service (see HSBC Bank USA, N.A. v. Whitter, 159 A.D.3d 942, 945, 74 N.Y.S.3d 285 ). Bare and unsubstantiated denials are insufficient for this purpose, and no hearing is required when the defendant fails to swear to specific facts to rebut the statements in the process server's affidavit (see Nationstar Mtge., LLC v. Dekom, 161 A.D.3d 995, 996, 78 N.Y.S.3d 148 ; Deutsche Bank Natl. Trust Co. v. Quinones, 114 A.D.3d 719, 719, 981 N.Y.S.2d 107 ).

Here, the affidavit of service established proper service both upon the...