W. Coast Servicing, Inc. v. Yusupova
| Decision Date | 01 May 2019 |
| Docket Number | 2017–11686,Index No. 1385/15 |
| Citation | 172 A.D.3d 789,97 N.Y.S.3d 486 (Mem) |
| Parties | WEST COAST SERVICING, INC., Respondent, v. Zarina YUSUPOVA, Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
172 A.D.3d 789
97 N.Y.S.3d 486 (Mem)
WEST COAST SERVICING, INC., Respondent,
v.
Zarina YUSUPOVA, Appellant, et al., Defendants.
2017–11686
Index No. 1385/15
Supreme Court, Appellate Division, Second Department, New York.
Submitted—January 17, 2019
May 1, 2019
Anderson, Bowman & Zalewski, PLLC, Kew Gardens, N.Y. (Matthew J. Routh of counsel), for appellant.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, without costs or disbursements.
The plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Zarina Yusupova (hereinafter the defendant). According to the affidavit of service, the defendant was personally served with copies of the summons and complaint at her place of business on March 12, 2015. The defendant neither answered the complaint nor appeared in this action.
On November 29, 2016, the Supreme Court entered a judgment of foreclosure and sale. Thereafter, the defendant moved, in effect, pursuant to CPLR 5015(a)(1) and (4) to vacate the
judgment of foreclosure and sale. In an order entered September 5, 2017, the court denied the defendant's motion. The defendant appeals.
"When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4) and also 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)" ( Wells Fargo Bank, NA v. Besemer , 131 A.D.3d 1047, 1047, 16 N.Y.S.3d 819 ; see E*Trade Bank v. Vazquez , 126 A.D.3d 933, 933–934, 7 N.Y.S.3d 285 ; Emigrant Mtge. Co. v. Westervelt , 105 A.D.3d 896, 897, 964 N.Y.S.2d 543 ).
"To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant
must overcome the presumption raised by the process server's affidavit of service" ( HSBC Bank USA, N.A. v. Whitter , 159 A.D.3d 942, 945, ...
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