COLONIAL CREDIT CORPORATION AAO v. COKER (2025)

Order (Emily Morales-Minerva, J.), entered on September 14, 2022, reversed, without costs, defendant's motion to vacate the default judgment is granted to the extent of setting the matter down for a traverse hearing to determine whether defendant was properly served and further proceedings in accordance herewith.

While plaintiff's affidavit of service constitutes prima facie evidence of proper service (see Wells Fargo Bank, N.A. v Njoku, 148 AD3d 438 [2017]), defendant's sworn denial raises a factual issue concerning whether a purported “co-tenant” named “Will” was a person of suitable age and discretion at defendant's residence, thus necessitating a traverse hearing (see NYCTL 1998-1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459, 460 [2004]).

With respect to the portion of defendant's motion seeking relief pursuant to CPLR 5015 (a) (1), the court's determination that defendant lacked a reasonable excuse for her default apparently turned on its rejection of defendant's sworn assertion that she was not served with the summons and complaint in 2006, and that the first notice she received was a notice of garnishment in March 2022. However, those assertions raise issues of credibility to be explored at the hearing (see Marable v Williams, 278 AD2d 459, 460 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

I concur I concur I concur