Wells Fargo Bank, N.A. v. Christie

• Citation: 921 N.Y.S.2d 127,83 A.D.3d 824,2011 N.Y. Slip Op. 03053
• Parties: WELLS FARGO BANK, N.A., etc., respondent, v. Alex T. CHRISTIE, et al., defendants, Emilsen E. Restrepo, appellant.
• Decision Date: 12 April 2011
• Court: New York Supreme Court

83 A.D.3d 824

921 N.Y.S.2d 127

WELLS FARGO BANK, N.A., etc., respondent,

v. Alex T. CHRISTIE, et al., defendants,Emilsen E. Restrepo, appellant.

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

April 12, 2011.

Lewin & Baglio, LLP, Melville, N.Y. (Michael Zimmerman of counsel), for appellant.

Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Jordan J. Manfro of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.

In an action to foreclose a mortgage, the defendant Emilsen E. Restrepo appeals from an order of the Supreme Court, Suffolk County (MacKenzie, J.), dated November 7, 2008, which denied her motion pursuant to CPLR 5015 (a)(4) to vacate a judgment of foreclosure and sale dated July 28, 2008, entered upon her default in answering or appearing.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine whether the defendant, Emilsen R. Restrepo, was properly served with process pursuant to CPLR 308(2), and thereafter for a new determination of her motion to vacate the judgment of foreclosure and sale.

This action was commenced in late May 2007. According to the affidavit of service, the defendant, Emilsen E. Restrepo, was served at her home pursuant to CPLR 308(2) by delivery of the summons and complaint upon Jose Ramirez, referred to as a co-tenant. Restrepo neither answered nor appeared and, on July 28, 2008, the Supreme Court signed a judgment of foreclosure and sale. In October 2008 Restrepo moved pursuant to CPLR 5015(a)(4) to vacate the judgment which was entered upon her default. In support, she submitted an affidavit explicitly stating that the affidavit of service was false, that she did not know anyone named Jose Ramirez, and that no one by that name or fitting the description contained in the affidavit of service ever entered or occupied her home. The Supreme Court denied Restrepo's motion, finding that her affidavit was self-serving and insufficient to rebut the presumption of service created by the affidavit of service. In rejecting Restrepo's lack of jurisdiction argument, the Supreme Court also determined that she failed to establish a reasonable excuse for her default pursuant to CPLR 5015(a)(1). Moreover, the Supreme Court determined that Wells Fargo had standing to commence the action. We reverse.

Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served ( see U.S. Consults v. APG, Inc., 82 A.D.3d 753, 917 N.Y.S.2d 911 [2d Dept. 2011]; Washington Mut. Bank v. Holt, 71 A.D.3d 670, 897 N.Y.S.2d 148). While bare and unsubstantiated denials are insufficient to rebut the presumption of service ( see U.S. Consults v. APG, Inc., 82 A.D.3d 753, 917 N.Y.S.2d 911 [2d Dept. 2011]; Sturino v. Nino Tripicchio & Son Landscaping, 65 A.D.3d 1327, 885 N.Y.S.2d 625), a sworn denial of service...