TBF Fin., LLC v. Eagle Tours, LLC

• Decision Date: 22 May 2019
• Docket Number: 2018–06649,Index No. 785/17
• Citation: 172 A.D.3d 1269,101 N.Y.S.3d 365
• Parties: TBF FINANCIAL, LLC, etc., Respondent, v. EAGLE TOURS, LLC, Defendant, Rui Sun, etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1269

101 N.Y.S.3d 365

TBF FINANCIAL, LLC, etc., Respondent,

v. EAGLE TOURS, LLC, Defendant,Rui Sun, etc., et al., Appellants.

2018–06649

Index No. 785/17

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

Argued—March 1, 2019

May 22, 2019

Law Office of Peter L. Quan, PLLC, Flushing, N.Y. (Haizhan Zheng of counsel), for appellants.

Heitner & Breitstein, P.C., Brooklyn, N.Y. (Eugene M. Banta of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action to recover damages for breach of a lease, the defendants Rui Sun and Pei Hua Wang appeal from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated April 18, 2018. The order denied the motion of those defendants to vacate a judgment of the same court entered June 19, 2017, in favor of the plaintiff and against them upon their failure to appear or answer the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for an alleged breach of a lease the defendants had entered into with the plaintiff's assignor. On June 19, 2017, a judgment was entered in favor of the plaintiff and against the appellants upon the appellants' failure to appear or answer the complaint. On January 11, 2018, the appellants moved pursuant to CPLR 5015(a)(1) and (4) to vacate their default, asserting that they were never served with process and, therefore, the Supreme Court lacked personal jurisdiction. The court denied the motion.

"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)" ( HSBC Bank USA, N.A. v. Dalessio , 137 A.D.3d 860, 862–863, 27 N.Y.S.3d 192 [internal quotation marks omitted]; see PNC Bank, N.A. v. Bannister , 161 A.D.3d 1114, 1115, 77 N.Y.S.3d 452 ; Wachovia Bank, N.A. v. Greenberg , 138 A.D.3d 984, 985, 31 N.Y.S.3d 110 ; Wells Fargo Bank, NA v. Besemer , 131 A.D.3d 1047, 16 N.Y.S.3d 819 ; Roberts v. Anka , 45 A.D.3d 752, 753, 846 N.Y.S.2d 280 ).

A process server's affidavit of service constitutes prima facie evidence of proper service (see Rolling Acres Developers, LLC v. Montinat , 166 A.D.3d 696, 697, 88 N.Y.S.3d 46 ; Mizerek v. Rosenfeld , 162 A.D.3d 1005, 1006, 80 N.Y.S.3d 358 ; PNC Bank, N.A. v. Bannister , 161 A.D.3d 1114, 1115, 77 N.Y.S.3d 452 ). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" ( Nationstar Mtge., LLC v. Dekom , 161 A.D.3d 995, 996, 78 N.Y.S.3d 148 [internal quotation marks omitted]; see Nationstar Mtge., LLC v. Kamil , 155 A.D.3d 966, 967, 64 N.Y.S.3d 116 ; Rabinowitz v. Rabinowitz , 137 A.D.3d 884, 885, 28 N.Y.S.3d 70 ). "[A]n affidavit by the defendant that is conclusory or bare and unsubstantiated is not sufficient to rebut the presumption" ( Rabinowitz v. Rabinowitz , 137 A.D.3d at 885, 28 N.Y.S.3d 70 ; see Deutsche Bank Natl. Trust Co. v. Quinones , 114 A.D.3d 719, 981 N.Y.S.2d 107 ).

Here, with respect to the appellant Rui Sun, the process server's affidavit of service contained sworn allegations attesting to the delivery and mailing of service pursuant to CPLR 308(2). The affidavit of service constituted prima facie evidence of service of the summons and complaint pursuant to CPLR 308(2) (see Nationstar Mtge., LLC v. Kamil , 155 A.D.3d at 967, 64 N.Y.S.3d 116 ). Sun does not refute that the process server's affidavit is prima facie evidence of service.

Contrary to the appellants' contention, Sun's affidavit failed to rebut the presumption of proper service upon him. Sun failed to rebut the process server's sworn allegations that the individual who was served with the relevant papers, Sai He, was Sun's coworker and present at the subject property at the time of the alleged service. While Sun claimed that he was told by Sai He that he did not receive any documents from the process server that day, Sun's assertion to that effect was inadmissible hearsay and amounted to a bare denial of receipt. Further, Sun's conclusory assertion that Sai He was not authorized to accept substitute service failed to establish that Sai He was not a person of suitable age and discretion under CPLR 308(2) (see Marathon Structured Asset Solutions Trust v. Fennell , 153 A.D.3d 511, 512, 61 N.Y.S.3d 232 ; Roldan v. Thorpe , 117 A.D.2d 790, 791–792, 499 N.Y.S.2d 114 ). Moreover, Sun's conclusory assertion that he did not receive the mailed papers was insufficient to overcome the presumption of proper mailing that arose from the process server's affidavit (see Nationstar Mtge., LLC v. Kamil , 155 A.D.3d at 968, 64...