Wilmington Trust, NA v. Daddi

203 A.D.3d 1112

166 N.Y.S.3d 35

WILMINGTON TRUST, NA, respondent,

v.Antonio DADDI, appellant, et al., defendants.

2019–05078, 2019–07700

Index No. 1694/16

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

Submitted—January 14, 2022

March 23, 2022

Michael S. Finkelstein, Garden City, NY, for appellant.

Druckman Law Group, PLLC, Westbury, NY (Maria Sideris and Christopher P. Kohn of counsel), for respondent.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Antonio Daddi appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered August 27, 2018, and (2) an order of the same court entered May 15, 2019. The order entered August 27, 2018, insofar as appealed from, without a hearing, denied those branches of that defendant's motion which were pursuant to CPLR 5015(a) to vacate a judgment of foreclosure and sale of the same court entered December 2, 2016, and to set aside the sale of the subject property, or, in the alternative, for a hearing to determine the validity of service of process upon that defendant. The order entered May 15, 2019, insofar as appealed from, denied those branches of that defendant's motion which were for leave to renew and reargue those branches of his prior motion which were to vacate the judgment of foreclosure and sale and to set aside the sale of the subject property.

ORDERED that the order entered August 27, 2018, is affirmed insofar as appealed from; and it is further,

ORDERED that the appeal from so much of the order entered May 15, 2019, as denied that branch of the motion of the defendant Antonio Daddi which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order entered May 15, 2019, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In 2016, the plaintiff commenced this mortgage foreclosure action against the defendant Antonio Daddi (hereinafter the defendant), among others. In March 2016, the defendant purportedly was personally served with process pursuant to CPLR 308(1). After the defendant's time to appear or answer the complaint had expired, the plaintiff moved, inter alia, for a default judgment of foreclosure and sale, directing the sale of the subject property, and the Supreme Court granted the plaintiff's motion. A judgment of foreclosure and sale was entered on December 2, 2016, and the subject property was sold thereafter.

Subsequently, the defendant moved, among other things, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale and to set aside the foreclosure sale for lack of personal jurisdiction, or, in the alternative, for a hearing to determine the validity of service of process upon the defendant. The Supreme Court denied the motion. The defendant then moved, inter alia, for leave to renew and reargue those branches of his prior motion, and the court denied the motion. The defendant appeals.

"A process server's affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service" ( Bethpage Fed. Credit Union v. Grant, 178 A.D.3d 997, 997, 115 N.Y.S.3d 410 ; see U.S. Bank N.A. v. Ramos, 153 A.D.3d 882, 884, 60 N.Y.S.3d 345 ; Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ). " ‘A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit’ " ( Bethpage Fed. Credit Union v. Grant, 178 A.D.3d at 997–998, 115 N.Y.S.3d 410, quoting Washington Mut. Bank v. Huggins, 140 A.D.3d 858, 859, 35 N.Y.S.3d 127 ). "In order to warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service" ( Washington Mut. Bank v. Huggins, 140 A.D.3d at 859, 35 N.Y.S.3d 127 ; see Machovec v. Svoboda, 120 A.D.3d 772, 773–774, 992 N.Y.S.2d 279 ).

Here, the affidavit of service reflects that the defendant was personally served with the summons and complaint at the subject property and sets forth in detail a physical description of the defendant. In his affidavit in support of his motion pursuant to CPLR 5015(a), the defendant attempted to rebut the presumption of proper service created by the affidavit of service by averring that he left a friend's house approximately 30 minutes prior to the alleged time of service, and that "[n]o process server was at [his] home on March...