& Licatesi, P.C., Garden City, NY (Richard H. Rubin and
Amy J. Zamir of counsel), for appellants.
T. Roach & Associates, P.C., Syosset, NY (Michael C.
Manniello of counsel), for respondent.
PRISCILLA HALL, J.P., JEFFREY A. COHEN, BETSY BARROS, LINDA
DECISION & ORDER
action to foreclose a mortgage, the defendants appeal from an
order of the Supreme Court, Nassau County (Adams, J.),
entered November 4, 2015, which denied their motion pursuant
to CPLR 5015(a)(1) and (4) to vacate a judgment of
foreclosure and sale of the same court dated June 30, 2014,
entered upon their failure to appear or answer the complaint,
to set aside the foreclosure sale of the subject property,
and to dismiss the complaint insofar as asserted against them
for lack of personal jurisdiction and for failure to comply
with RPAPL 1304 and 1306 or, in the alternative, for leave to
serve a late answer.
that the order is affirmed, with costs.
plaintiff commenced this mortgage foreclosure action against
the defendants, who did not answer the complaint or appear in
the action. In October 2013, the Supreme Court granted the
plaintiff's unopposed motion for an order of reference.
Thereafter, the court granted the plaintiff's unopposed
motion for leave to enter a judgment of foreclosure and sale.
order to show cause dated June 12, 2015, the defendants moved
pursuant to CPLR 5015(a)(1) and (4) to vacate the judgment of
foreclosure and sale dated June 30, 2014, to set aside the
foreclosure sale of the property, and to dismiss the
complaint insofar as asserted against them for lack of
personal jurisdiction and for failure to comply with RPAPL
1304 and 1306 or, in the alternative, for leave to serve a
late answer. The plaintiff opposed the motion, arguing that
the defendants were properly served pursuant to CPLR 308(2),
and that they failed to proffer a reasonable excuse for their
default or a meritorious defense to the action. In an order
entered November 4, 2015, the Supreme Court denied the
defendants' motion. The defendants appeal.
as here, a defendant seeking to vacate a default judgment
raises a jurisdictional objection pursuant to CPLR
5015(a)(4), and seeks a discretionary vacatur pursuant to
CPLR 5015(a)(1), a 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)" (HSBC Bank USA, N.A. v
Dalessio, 137 A.D.3d 860, 862-863 [internal quotation
marks omitted]; see Wachovia Bank, N.A. v Greenberg,
138 A.D.3d 984, 985; Wells Fargo Bank, NA v Besemer,
131 A.D.3d 1047; Roberts v Anka, 45 A.D.3d 752,
of process upon a natural person must be made in strict
compliance with the statutory methods of service set forth in
CPLR 308 (see Washington Mut. Bank v Murphy, 127
A.D.3d 1167, 1174; Emigrant Mtge. Co., Inc. v
Westervelt, 105 A.D.3d 896, 896-897). " [T]he
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'" (Krisilas v Mount Sinai Hosp., 63
A.D.3d 887, 889, quoting McMullen v Arnone, 79
A.D.2d 496, 499). Here, the process server's affidavit of
service established, prima facie, that the defendants were
served with the summons and complaint pursuant to CPLR
308(2). Contrary to the defendants' contention, their
submissions in support of the motion were insufficient to
defeat the presumption of proper service. The defendants aver
that they were never served with process, asserting that the
affidavits of the process server were factually incorrect
with respect to the description of the defendant Robert
McAuliffe, Jr. However, the claimed discrepancies between his
appearance and the description in the process server's
affidavits were minor and insufficiently substantiated to
warrant a hearing (see U.S. Bank N.A. v Cherubin,
141 A.D.3d 514, 516; Wells Fargo Bank, N.A. v
Tricarico, 139 A.D.3d 722, 723; Citimortgage, Inc. v
Baser, 137 A.D.3d 735, 736; Indymac Fed. Bank, FSB v
Hyman, 74 A.D.3d 751, 751). Accordingly, the Supreme
Court properly denied that branch of the defendants'
motion which was pursuant to CPLR 5015(a)(4).
extent that the motion sought vacatur pursuant to CPLR
5015(a)(1), the defendants were not entitled to such relief
since they failed to set forth a reasonable excuse for their
default, and it is unnecessary to consider whether they
sufficiently demonstrated a potentially meritorious defense,
including the plaintiff's alleged failure to ...