U.S. Bank Nat'l Ass'n v. Giraldo

192 A.D.3d 720

139 N.Y.S.3d 561 (Mem)

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,

v.Alphonso GIRALDO, appellant, et al., defendants.

2017–06655

Index No. 21752/06

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

Argued—January 12, 2021

March 3, 2021

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Alphonso Giraldo appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered April 28, 2017. The order denied, without a hearing, that defendant's motion pursuant to CPLR 5015(a) to vacate a judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine whether personal jurisdiction over the defendant Alphonso Giraldo was obtained, and a new determination of his motion thereafter.

In this action to foreclose a mortgage, the Supreme Court entered a judgment of foreclosure and sale upon the defendants' default. The defendant Alphonso Giraldo moved pursuant to CPLR 5015(a)(1) and (4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him on the ground, inter alia, that he was never served with the summons and complaint and, therefore, the court lacked personal jurisdiction over him. The plaintiff opposed Giraldo's motion. The court denied Giraldo's motion, and Giraldo appeals.

"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 defendant 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 Wells Fargo Bank, NA v. Spaulding, 177 A.D.3d 817, 818, 111 N.Y.S.3d 118 ; Roberts v. Anka, 45 A.D.3d 752, 753, 846 N.Y.S.2d 280 ). " ‘The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff’ " ( Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d at 897, 964 N.Y.S.2d 543, quoting Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ).

"Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308, and [a] defect in service is not cured by the defendant's subsequent receipt of actual notice of the commencement of the action" ( Wells Fargo Bank, NA v. Spaulding, 177 A.D.3d at 819, 111 N.Y.S.3d 118 [internal quotation marks and citations omitted]). "Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant was validly served" ( U.S. Bank, N.A. v. Peralta, 142 A.D.3d 988, 988, 37 N.Y.S.3d 308 ; see U.S. Bank, N.A. v. Schumacher, 172 A.D.3d 1137, 1137, 101 N.Y.S.3d 190 ; Fuentes v. Espinal, 153 A.D.3d 500, 501, 60 N.Y.S.3d 81 ). " ‘However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing’ " ( US Bank, N.A. v. Schumacher, 172 A.D.3d at 1138, 101 N.Y.S.3d 190, quoting U.S. Bank, N.A. v. Peralta, 142 A.D.3d at 988–989, 37 N.Y.S.3d 308 ).

Here, the process server's affidavit of service constituted prima facie evidence of valid service pursuant to CPLR 308 ( Wells Fargo Bank, NA v. Spaulding, 177 A.D.3d at 819, 111 N.Y.S.3d 118 ). However, Giraldo's affidavit in support of his motion, in which he denied that he was served, denied that he ever lived at the address where service was allegedly made, and set forth significant discrepancies between the process server's physical description of him and his actual physical appearance, was sufficient to rebut the process server's affidavit ( id. at 819, 111 N.Y.S.3d 118 ; FV–1, Inc. v. Reid, 138 A.D.3d 922, 923–924, 31...