- September 9, 2019
M. Blasie, P.C., Garden City, NY, for appellant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden
City, NY (Thomas A. Hooker of counsel), for respondent.
E. CHAMBERS, J.P. JOSEPH J. MALTESE HECTOR D. LASALLE LINDA
DECISION & ORDER
action to foreclose a mortgage, the defendant Stafford C.
Grant appeals from an order of the Supreme Court, Nassau
County (Thomas A. Adams, J.), entered January 27, 2016. The
order denied that defendant's motion, inter alia,
pursuant to CPLR 5015(a)(1) to vacate an order and judgment
of foreclosure and sale (one paper) of the same court entered
September 12, 2014, upon his default in appearing or
answering, or, in the alternative, pursuant to CPLR 317 to
vacate his default in appearing or answering the complaint
and for leave to interpose an answer.
that the order entered January 27, 2016, is affirmed, with
plaintiff commenced this action against the defendant
Stafford C. Grant (hereinafter the defendant), among others,
to foreclose a mortgage encumbering certain property in
Freeport. The defendant neither appeared nor interposed a
timely answer. By order entered August 12, 2013, the Supreme
Court granted the plaintiff's unopposed motion, inter
alia, for leave to enter a default judgment and for an order
of reference, and referred the matter to a referee to
ascertain and compute the amount due to the plaintiff.
September 12, 2014, the Supreme Court entered an order and
judgment of foreclosure and sale, inter alia, confirming the
referee's report and directing the foreclosure sale of
the subject property. Thereafter, the defendant moved, inter
alia, pursuant to CPLR 5015(a)(1) to vacate the order and
judgment of foreclosure and sale, or, in the alternative,
pursuant to CPLR 317 to vacate his default in appearing or
answering the complaint and for leave to interpose an answer.
By order entered January 27, 2016, the Supreme Court denied
the defendant's motion, and the defendant appeals.
process server's affidavit of service constitutes prima
facie evidence of proper service and, therefore, gives rise
to a presumption of proper service (see U.S. Bank N.A. v
Ramos, 153 A.D.3d 882, 884; Wells Fargo Bank, NA v
Chaplin, 65 A.D.3d 588, 589). "A mere conclusory
denial of service is insufficient to rebut the presumption of
proper service arising from the process server's
affidavit" (Washington Mut. Bank v Huggins, 140
A.D.3d 858, 859). "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" (id.
at 859; see Machovec v Svoboda, 120 A.D.3d 772,
the amended affidavit of service reflects that the defendant
was served pursuant to CPLR 308(2) on October 29, 2011, by
delivery of the summons and complaint to a female coresident
of the mortgaged premises, who was a person of suitable age
and discretion and whose physical description was set forth
in detail, followed by the required mailing to the address of
the mortgaged premises.
317 permits a defendant who has been served with a summons
and complaint other than by personal delivery to defend the
action upon a finding by the court that the defendant did not
personally receive notice of the summons and complaint in
time to defend and has a potentially meritorious defense
(see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co.,
67 N.Y.2d 138, 141; Wassertheil v Elburg, LLC, 94
A.D.3d 753, 754). However, "to support a determination
granting relief under CPLR 317, a party must still
demonstrate, and the Court must find, that the party did not
receive actual notice of the summons and complaint in time to
defend the action" (Wassertheil v Elburg, LLC,
94 A.D.3d at 754 [internal quotation marks omitted];
see CPLR 317; Eugene Di Lorenzo, Inc. v A.C.
Dutton Lbr. Co., 67 N.Y.2d at 142). "The mere
denial of receipt of the summons and complaint is . . .
insufficient to establish lack of actual notice for the
purpose of CPLR 317" (Wassertheil v Elburg,
LLC, 94 A.D.3d at 754 [internal quotation marks
omitted]; see Bank of N.Y. v Samuels, 107 A.D.3d
653, 654). Here, the defendant's contention that his
estranged wife deliberately concealed the summons and
complaint from him is speculative and without sufficient
evidentiary support. Insofar as the defendant contends that
service pursuant to CPLR 308(2) was defective because his
wife was not a person of suitable discretion, that contention
is improperly raised for the first time on appeal. In light
of the foregoing, the Supreme Court providently exercised its
discretion in denying that branch of the defendant's
motion which was pursuant to CPLR 317 without regard to
whether the defendant demonstrated the existence of a
potentially meritorious defense (see Stevens v
Stepanski, 164 A.D.3d 935, 938; Xiao Lou Li v China
Cheung Gee Realty, LLC, 139 A.D.3d 724, 726).
Supreme Court also providently exercised its discretion in
denying that branch of the defendant's motion which was
pursuant to CPLR 5015(a)(1). A defendant seeking to vacate a
default in answering or appearing upon the grounds of
excusable default pursuant to CPLR 5015(a)(1) must
demonstrate a reasonable excuse for the default and a
potentially meritorious defense to the action (see Eugene
Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d at
141; HSBC Bank USA, N.A. v Smart, 155 A.D.3d 843,
843). "'The determination of what constitutes a
reasonable excuse lies within the sound discretion of the
Supreme Court'" (Deutsche Bank Natl. Trust Co. v
Saketos, 158 A.D.3d 610, 612, quoting Maspeth Fed.
Sav. & Loan Assn. v McGown, 77 A.D.3d 889, 890). In
this case, the defendant failed to establish a reasonable
excuse for his default, since the only excuse he proffered
was that he was not properly served with process (see
Indymac Fed. Bank FSB v Quattrochi, 99 A.D.3d 763, 765;
Reich v Redley, 96 A.D.3d 1038; Pezolano v
Incorporated City ...