Essig v. Essig

210 N.Y.S.3d 561

The ESTATE OF Kathryn ESSIG, Deceased, BY Barry ESSIG, Plaintiff-Respondent,

v.Steven F. ESSIG, Defendant-Appellant.

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

Entered: May 3, 2024

Appeal from an order of the Supreme Court, Onondaga County (Robert E. Antonacci, II, J.), entered December 22, 2022. The order, inter alia, granted plaintiff a default judgment and determined damages.

LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL), FOR DEFENDANTAPPELLANT.

JAMES G. DISTEFANO, FAYETTEVILLE, FOR PLAINTIFF-RESPONDENT.

PRESENT: LINDLEY, J.P., MONTOUR, OGDEN, AND GREENWOOD, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover on an installment loan contract. Defendant failed to respond to the complaint, and plaintiff moved for a default judgment. Defendant opposed the motion, contending, inter alia, that he had not been served with the complaint, and he cross-moved for, among other things, leave to serve an answer. Defendant now appeals from an order that, inter alia, granted plaintiff a default judgment and awarded plaintiff damages as well as attorneys’ fees and costs. We affirm.

[1, 2] Initially, we note that, pursuant to CPLR 5511, "[a]n aggrieved party … may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party." Thus, in general, "[n]o appeal lies from an order entered upon the default of the appealing party" (Matter of Heavenly A. [Michael P.], 173 A.D.3d 1621, 1622, 105 N.Y.S.3d 227 [4th Dept. 2019]). That rule does not apply, however, " ‘[w]here, as here, a party appears and contests an application for entry of a default judgment,’ " and thus defendant’s contentions are properly before us on this appeal (Spano v. Kline, 50 A.D.3d 1499, 1499, 857 N.Y.S.2d 382 [4th Dept. 2008], lv denied 11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653 [2008], lv denied 12 N.Y.3d 704, 876 N.Y.S.2d 705, 904 N.E.2d 842 [2009]).

[3, 4] With respect to the merits, we reject defendant’s contention that Supreme Court erred in granting plaintiff’s motion and that defendant was entitled to a traverse hearing. Plaintiff established his entitlement to default judgment against defendant by submitting "proof of service of the summons and the complaint, the facts constituting the claim, and … defendant’s default" (Diederich v. Wetzel, 112 A.D.3d 883, 883, 979 N.Y.S.2d 605 [2d Dept. 2013]; see LeChase Constr. Servs., LLC v. JM Bus. Assoc. Corp., 181 A.D.3d 1294, 1295, 121 N.Y.S.3d 479 [4th Dept. 2020]; PNC Bank, N.A v. Harmonson, 154 A.D.3d 1347, 1848, 61 N.Y.S.3d 787 [4th Dept. 2017]). " ‘Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served’ … Although ‘bare and unsubstantiated denials are insufficient to rebut the presumption of service …, 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’ " (Coch, LLC v. Ryan, 158 A.D.3d 1193, 1194, 71 N.Y.S.3d 237 [4th Dept. 2018]; see Alostar Bank of Commerce v. Sanoian, 158 A.D.3d 1659, 1659, 61 N.Y.S.3d 759 [4th Dept. 2017]). In support of the motion, plaintiff submitted an affidavit of a process server stating that defendant was personally served (see CPLR 308 [1]; see also CPLR 313) at a particular time and date at an address in Zephyrhills, Florida, and describing the race, hair, age, height, and weight of the person served.

[5] In opposition to the motion, defendant submitted an affidavit stating that the address where he was allegedly served "[was] not [his] residence"; that "[n]o one [had] ever served [him] with papers for a new lawsuit"; that "[n]o one [had] ever come to [his] residence in Florida to serve [him] papers for this lawsuit"; and that "[n]o one [had] delivered lawsuit papers to [him] at any other address." Contrary to defendant’s assertion, this is not a situation in which service was required to be mailed to a residence (cf CPLR 308 [2], [4]). Rather, this situation involves personal service, which, pursuant to CPLR 308 (1), may be made "by delivering the summons … to the person to be served" (see also CPLR 313). There is no requirement that such service be effectuated at any particular location and, as a result, it is irrelevant that the address listed on the affidavit of service is not defendant’s residence.

[6] Moreover, defendant did not dispute that he matched the description of the person served as set forth in the affidavit of the process server, contending only that "you can’t swing a dead cat in Florida without hitting a man of [the same] description." Discrepancies between the appearance of the person allegedly served and the...