115 Essex St. v. Tenth Ward

210 N.Y.S.3d 445

115 ESSEX STREET, LLC, respondent,

v.TENTH WARD, LLC, et al., defendants,Edward Doyle, appellant.

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

Argued—October 30, 2023

May 1, 2024

SDK Heiberger, LLP, New York, NY (Jacqueline Handel-Harbour and Steven Sperber of counsel), for appellant.

Shanker Law Group, Mineola, NY (Neil A. Bloom of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, HELEN VOUTSINAS, CARL J. LANDICINO, JJ.

DECISION & ORDER

In an action to recover damages for breach of contract and to recover on a personal guaranty, the defendant Edward Doyle appeals from (1) an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated September 14, 2020, and (2) an order of the same court dated October 28, 2020. The order dated September 14, 2020, denied the motion of the defendant Edward Doyle, inter alia, pursuant to CPLR 5015(a) and 317 to vacate a clerk’s judgment of the same court dated July 18, 2019, insofar as entered against him upon his failure to appear or answer the complaint. The order dated October 28, 2020, insofar as appealed from, in effect, upon reargument, adhered to the original determination in the order dated September 14, 2020, denying the motion of the defendant Edward Doyle, inter alia, pursuant to CPLR 5015(a) and 317 to vacate the clerk’s judgment dated July 18, 2019, insofar as entered against him.

ORDERED that the order dated September 14, 2020, is reversed, on the law, the order dated October 28, 2020, is vacated, and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine whether the defendant Edward Doyle was properly served with process, and for a new determination thereafter of the motion of the defendant Edward Doyle, inter alia, pursuant to CPLR 5015(a) and 317 to vacate the clerk’s judgment dated July 18, 2019, insofar as, entered against him; and it is further,

ORDERED that the appeal from the order dated October 28, 2020, is dismissed as academic in light of our determination on the appeal from the order dated September 14, 2020; and it is further,

ORDERED that one bill of costs is awarded to the defendant Edward Doyle.

In February 2019, the plaintiff commenced this action against, among others, the defendant Edward Doyle (hereinafter the defendant). The defendant neither answered the complaint nor made a preanswer motion to dismiss the complaint. Following the plaintiff’s motion pursuant to CPLR 3215 for leave to enter a default judgment, the Supreme Court entered judgment in favor of the plaintiff and against, among others, the defendant.

In or about July 2020, the defendant moved, inter alia, pursuant to CPLR 5015(a) and 317 to vacate the judgment insofar as entered against him. In an order dated September 14, 2020, the Supreme Court denied the defendant’s motion without a hearing. Subsequently, the defendant moved for leave to reargue his prior motion, and the plaintiff opposed the motion. In an order dated October 28, 2020, the court, in effect, granted leave to reargue, and upon reargument, adhered to the original determination in the order dated September 14, 2020. The defendant appeals.

[1–3] "When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the 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)" (Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543 [internal quotation marks omitted]; see U.S. Bank N.A. v. Giraldo, 192 A.D.3d 720, 721, 139 N.Y.S.3d 561). "Pursuant to CPLR 5015(a)(4), ‘[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person … upon the ground of … lack of jurisdiction to render the judgment or order.’ Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308" (Wells Fargo Bank, N.A. v. Enitan, 200 A.D.3d 736, 737–738, 158 N.Y.S.3d 214). "The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void" (id. at 738, 158 N.Y.S.3d 214).

[4–7] "Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served" (Wachovia Bank, N.A. v. Greenberg, 138 A.D.3d 984, 985, 31 N.Y.S.3d 110; see Deutsche Bank Natl. Trust Co. v. Simpson, 208 A.D.3d 1305, 1307, 175 N.Y.S.3d 312). Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of service (see Deutsche Bank Natl. Trust Co. v. Simpson, 208 A.D.3d at 1307, 175 N.Y.S.3d 312; HSBC Bank USA, N.A. v. Archibong, 157 A.D.3d 662, 663, 66 N.Y.S.3d 625; Deutsche Bank Natl. Trust Co. v. DaCosta, 97 A.D.3d 630, 631, 949 N.Y.S.2d 393). "However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit, and necessitates an evidentiary hearing" (Deutsche Bank Natl. Trust Co. v. DaCosta, 97 A.D.3d at 631, 949 N.Y.S.2d 393; see HSBC Bank USA, N.A. v. Archibong, 157 A.D.3d at 663, 66 N.Y.S.3d 625). "If an issue regarding service turns upon a question of credibility, a healing should be held to render a determination on this issue" (Rosemark Contrs., Inc. v. Ness, 149 A.D.3d 1115, 1116, 53 N.Y.S.3d 188; see Deutsche Bank Natl. Trust Co. v. Simpson, 208 A.D.3d at 1307, 175 N.Y.S.3d 312; HSBC Bank USA, N.A. v. Archibong, 157 A.D.3d at 663, 66 N.Y.S.3d 625).

[8] Here, the Supreme Court erred in...