HSBC BANK USA NATIONAL ASSOCIATION v. Kay Medrano, Defendant–Appellant. (2024)

Order, Supreme Court, New York County (Francis A. Kahn III, J.), entered June 21, 2023, which denied defendant Kay Medrano's motion to vacate the judgment of foreclosure and sale that was entered on default, unanimously affirmed, without costs.

Pursuant to CPLR 308(1), personal service upon a natural person may be made “by delivering the summons within the state to the person to be served.”  Pursuant to CPLR 308(2), personal service upon a natural person may be made by “delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business.”  Under either standard, “[t]he affidavit of the process server constitute[s] prima facie evidence of proper service pursuant to CPLR 308(1) and (2)” (Wells Fargo Bank, N.A. v. Tricarico, 139 A.D.3d 722, 723, 32 N.Y.S.3d 213 [2d Dept. 2016]).

Here, in a sworn affidavit, the process server described the individual served as a white female with black hair, approximately 50 years old, five feet six inches in height, and 180 pounds.  To rebut this prima facie showing under CPLR 308(1), Medrano “was required to submit a sworn, nonconclusory denial of service or swear to specific facts to rebut the statements in the process server's affidavit” (JP Morgan Chase Bank v. Dennis, 166 A.D.3d 530, 531, 89 N.Y.S.3d 135 [1st Dept. 2018]).  However, she failed to allege sharp discrepancies such as those described in NYCTL 1998–1 Trust & Bank of N.Y. v. Rabinowitz, 7 A.D.3d 459, 459, 777 N.Y.S.2d 483 (1st Dept. 2004), and failed to submit sufficiently substantiated documentary evidence to warrant a hearing (see PNC Bank, N.A. v. Bannister, 161 A.D.3d 1114, 1115–1116, 77 N.Y.S.3d 452 [2d Dept. 2018]).

Furthermore, service was proper under CPLR 308(2).  Medrano did not dispute that the property where service was allegedly effected was her primary residence (see Wells Fargo Bank, N.A. v. Javier, 179 A.D.3d 482, 482, 116 N.Y.S.3d 257 [1st Dept. 2020]), nor that her daughter resided at the address where service was effectuated and was of suitable age and discretion to have accepted service (see Ocwen Loan Servicing, LLC v. Ali, 180 A.D.3d 591, 591, 119 N.Y.S.3d 474 [1st Dept. 2020], lv dismissed 36 N.Y.3d 1046, 140 N.Y.S.3d 477, 164 N.E.3d 283 [2021]).