Machovec v. Svoboda

• Decision Date: 27 August 2014
• Citation: 992 N.Y.S.2d 279,120 A.D.3d 772,2014 N.Y. Slip Op. 05960
• Parties: Miro MACHOVEC, respondent, v. Peter SVOBODA, appellant.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 772

992 N.Y.S.2d 279

2014 N.Y. Slip Op. 05960

Miro MACHOVEC, respondent,

v.Peter SVOBODA, appellant.

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

Aug. 27, 2014.

Kerry Fontana, Brooklyn, N.Y., for appellant.

Michael Swaaley, Staten Island, N.Y., for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for breach of a lease, the defendant appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated May 28, 2013, which denied his motion, inter alia, to vacate a judgment dated November 1, 2011, entered upon his default in appearing or answering the complaint.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Richmond County, for a hearing to determine whether the defendant was properly served with process, and for a new determination of the motion thereafter.

The defendant leased property from the plaintiff on Staten Island. In 2010, in the midst of a dispute over the rent and an alleged oral modification of their agreement, the plaintiff commenced this action against the defendant. According to the process server's affidavit of service, the process server personally delivered a copy of the summons and complaint to the defendant on September 7, 2010. The defendant, who denies that he was served with a copy of the summons and complaint, did not answer or otherwise appear in the action.

In November 2010, the plaintiff mailed an additional copy of the summons and complaint to the defendant as a prerequisite to obtaining a default judgment under CPLR 3215. The defendant received the mailing, but ignored it on advice of counsel because of a perceived defect in the summons. The defendant expressly told counsel that he had not received a copy of the summons and complaint by any other means. In November 2011, the plaintiff obtained a default judgment against the defendant.

In early 2013, the defendant moved to vacate the judgment and extend the time to answer the complaint pursuant to, inter alia, CPLR 5015(a)(1), or to vacate the judgment and dismiss the complaint pursuant to CPLR 3211(a)(8) and 5015(a)(4). The Supreme Court denied the motion without explanation and without holding a hearing to determinate the propriety of service of process.

A process server's affidavit of service gives rise to a presumption of proper service ( see Wells Fargo Bank, N.A. v. Final Touch Interiors, LLC, 112 A.D.3d 813, 814, 977 N.Y.S.2d 351; Matter of Romero v. Ramirez, 100 A.D.3d 909, 910, 955 N.Y.S.2d 353; Stephan B. Gleich & Assoc. v. Gritsipis, 87 A.D.3d 216, 220, 927 N.Y.S.2d 349). To be entitled to vacatur of a default judgment and dismissal of a complaint under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server's affidavit of service. A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service ( see Deutsche Bank Natl. Trust Co. v. DaCosta, 97 A.D.3d 630, 631, 949 N.Y.S.2d 393; Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682; Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 344, 756 N.Y.S.2d 92). If the presumption is rebutted, a...