CPLR R. 2221(e) Motion for Leave to Renew
CPLR § 308 Personal service upon a natural person
CPLR R. 5015 Relief from judgment or order
CPLR § 317 Defense by person to whom summons not personally delivered
Gonzalez v City of New York, 2009 NY Slip Op 06163 (App. Div., 2nd, 2009)
The defendants proffered a reasonable justification for the failure
to present the affidavit of the defendant Miguel Carvajal in opposition
to the plaintiff's prior motion for leave to enter a default judgment
against Carvajal and in support of their prior cross motion, inter
alia, to vacate Carvajal's default in appearing in the action or
answering the complaint based on the Corporation Counsel's delay in
obtaining an affidavit from Carvajal (see CPLR 2221[e][2], [3]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Miller v Duffy, 162 AD2d 438, 439-440; Matter of Mangialino v White Haven Mem. Park, 132 AD2d 970, 971).Service upon Carvajal was made, inter alia, by delivery of the
summons and complaint to a coworker at Carvajal's actual place of
business and by mailing the summons to him at his actual place of
business pursuant to CPLR 308(2) (see Anderson v GHI Auto Serv., Inc., 45 AD3d 512,
513). Although the defendants' cross motion was made pursuant to CPLR
5015(a)(1), under the circumstances of this case, it may also be
treated as a motion made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498). Upon renewal, the defendants established that Carvajal did not receive [*2]actual
notice of the summons in time to defend, he did not deliberately
attempt to avoid service, and he has a meritorious defense to the
action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725, 727; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Samet v Bedford Flushing Holding Corp.,
299 AD2d 404, 405). Accordingly, upon renewal, the plaintiff's prior
motion for leave to enter a default judgment against Carvajal was
properly denied and the defendants' prior cross motion to vacate
Carvajal's default and to compel the plaintiff to accept the amended
answer was properly granted.
Wells Fargo Bank, NA v Chaplin, 2009 NY Slip Op 06179 (App. Div., 2nd, 2009)
The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Frankel v Schilling,
149 AD2d 657, 659). 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 (see Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Frankel v Schilling, 149 AD2d 657, 659; see also New Is. Invs. v Wynne,
251 AD2d 560). However, where there is a sworn denial that a defendant
was served with process, the affidavit of service is rebutted, and the
plaintiff must establish jurisdiction at a hearing by a preponderance
of the evidence (see Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Kingsland Group v Pose, 296 AD2d 440; Balancio v Santorelli, 267 AD2d 189; New Is. Invs. v Wynne, 251 AD2d 560; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d at 352).
[*2]Here, the plaintiff allegedly
effected service upon the appellant pursuant to CPLR 308(2) on April
23, 2007, by delivering the summons and complaint to a person of
suitable age and discretion, who was identified as Marilyn Matheson, at
the appellant's residence in Queens. In support of her motion, in
effect, to vacate her default in appearing or answering the complaint,
the appellant submitted an affidavit from Matheson averring that the
summons and complaint had never been delivered to her, and that she was
in Pawling, New York, in April 2007. Although Matheson's affidavit did
not specify that she was in Pawling on April 23, 2007, when process
allegedly was delivered to her in Queens, the appellant submitted
additional evidence to substantiate her claim that Matheson was in
Pawling that day, including a letter from a physician who treated
Matheson for flu symptoms. The appellant's submissions also indicated
that Matheson's physical appearance varied significantly from the
description set forth in the affidavit of service. Under these
circumstances, the appellant is entitled to a hearing on the issue of
whether service was properly effected pursuant to CPLR 308(2) (see Zion v Peters, 50 AD3d 894; Mortgage Access Corp. v Webb, 11 AD3d at 593; Bankers Trust Co. of Cal. v Tsoukas,
303 AD2d at 344). Thus, we remit the matter to the Supreme Court,
Queens County, for a hearing to determine whether the appellant was
properly served and thereafter for a new determination of the motion to
vacate.The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
reargue must be dismissed, since no appeal lies from an order denying
reargument. The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
renew must be dismissed as academic in light of our determination on
the appeal from the order dated December 4, 2007.
The bold is mine.
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