Lasalle Bank Nat'l Ass'n v. Calle

153 A.D.3d 801

61 N.Y.S.3d 104

LaSALLE BANK NATIONAL ASSOCIATION, as trustee on behalf of the holders of the BSAMP Trust 2006–HE4 Mortgage Pass–Through Certificates, Series 2006–HE4, respondent,

v.Edwin E. CALLE, appellant, et al., defendants.

2015-11373. Index No. 9507/09.

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

Aug. 23, 2017.

William R. Lizarraga, Jackson Heights, NY, for appellant.

Locke Lord, LLP, New York, NY (R. James DeRose III and Riley T. Orloff of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.

In an action to foreclose a mortgage, the defendant Edwin E. Calle appeals from an order of the Supreme Court, Queens County (D.Hart, J.), dated August 26, 2015, which denied his motion pursuant to CPLR 5015(a)(1) to vacate a judgment of foreclosure and sale dated June 1, 2010, entered upon his failure to appear or answer the complaint.

ORDERED that the order is affirmed, with costs.

In this action to foreclose a mortgage, the defendant Edwin E. Calle (hereinafter the defendant) moved to vacate a judgment of foreclosure and sale dated June 1, 2010, entered upon his failure to appear or answer the complaint. The Supreme Court denied the motion, and the defendant appeals.

A defendant seeking to vacate a default in answering or appearing upon the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1] ; Wells Fargo Bank, N.A. v. Hampton, 119 A.D.3d 856, 989 N.Y.S.2d 368 ; Deutsche Bank Natl. Trust Co. v. Ramirez, 117 A.D.3d 674, 675, 985 N.Y.S.2d 616 ; Wells Fargo Bank v. Malave, 107 A.D.3d 880, 968 N.Y.S.2d 127 ; U.S. Bank N.A. v. Stewart, 97 A.D.3d 740, 948 N.Y.S.2d 411 ). Here, in moving to vacate the judgment of foreclosure and sale, the defendant asserted as a reasonable excuse that he was not served with the summons and complaint, and that, when he learned of the action, he did not file an answer due to the law office failure of his two prior attorneys.

"Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" ( Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ). A defendant's sworn denial of receipt of service rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing where the defendant swears to specific facts to rebut the statements in the affidavit of service (see Bank of N.Y. v. Samuels, 107 A.D.3d 653, 653–654, 968 N.Y.S.2d 93 ; Indymac Fed. Bank FSB v. Quattrochi, 99 A.D.3d 763, 764, 952 N.Y.S.2d 239 ). The mere denial of receipt of the summons and complaint, without factual detail, is insufficient to demonstrate a reasonable excuse for a default (see HSBC Bank USA, N.A. v. Powell, 148 A.D.3d 1123, 51 N.Y.S.3d 116 ; Goldfarb v. Zhukov, 145 A.D.3d 757, 758, 43 N.Y.S.3d 135 ; Bank of N.Y. v. Samuels, 107 A.D.3d at 654, 968 N.Y.S.2d 93 ).

Here, the process server's affidavit of service alleged that the complaint was left at the defendant's home with a person of suitable age and discretion (see CPLR 308[2] ), and another copy was mailed to the defendant's home. The defendant's bare statement in an affidavit that he did not know the person of suitable age and discretion described in the affidavit of service failed to rebut the prima facie proof of proper service set forth in the affidavit of service and, therefore, was insufficient to demonstrate a reasonable excuse for his default (see HSBC Bank USA, N.A. v. Powell, 148 A.D.3d 1123, 51 N.Y.S.3d 116 ; Goldfarb v. Zhukov, 145 A.D.3d at 758, 43 N.Y.S.3d 135; Bank of N.Y. v. Samuels, 107 A.D.3d at 654, 968 N.Y.S.2d 93 ).

The defendant also failed to demonstrate a reasonable excuse for his default based on alleged law office failure. His bare statement in his affidavit that he only learned upon hiring his third...