WELLS FARGO BANK v. Audrey M. Leonardo, etc., Appellant. (2018)

DECISION & ORDER

ORDERED that the order entered September 29, 2016, is affirmed insofar as appealed from, with costs.

The facts of this action are set forth in this Court's decision and order on a companion appeal (see Wells Fargo Bank, N.A. v. Leonardo, 167 A.D.3d 811, 90 N.Y.S.3d 202, 2018 WL 6518932 [Appellate Division Docket No. 2015–06284, decided herewith] ).

By order to show cause dated March 15, 2016, the defendant Audrey M. Leonardo (hereinafter the defendant) appearing, pro se, moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate so much of two orders of the Supreme Court, Nassau County, both entered February 26, 2015, as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against her.  By order entered September 29, 2016, the Supreme Court denied the motion.

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 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;  HSBC Bank USA, N.A. v. Smart, 155 A.D.3d 843, 843, 63 N.Y.S.3d 700).  Here, the defendant asserted as an excuse that she was not served with the summons and complaint.

“ ‘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’ ” (LaSalle Bank N.A. v. Calle, 153 A.D.3d 801, 802, 61 N.Y.S.3d 104, quoting Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254).  A defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing;  however, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit of service (see Bank of N.Y. v. Samuels, 107 A.D.3d 653, 653–654, 968 N.Y.S.2d 93;  Indymac Fed. Bank FSB v. Quattrochi, 99 A.D.3d 763, 764, 952 N.Y.S.2d 239).

Here, the process server's affidavit of service alleged that the complaint was delivered to “Joseph C. Leonardo/son,” a person of suitable age and discretion (see CPLR 308[2] ).  The defendant's mere denial of service in an affidavit failed to rebut the presumption of proper service created by the process server's affidavit and, therefore, was insufficient to demonstrate a reasonable excuse for her default (see HSBC Bank USA, N.A. v. Powell, 148 A.D.3d 1123, 51 N.Y.S.3d 116;  Goldfarb v. Zhukov, 145 A.D.3d 757, 758, 43 N.Y.S.3d 135;  Bank of N.Y. v. Samuels, 107 A.D.3d at 654, 968 N.Y.S.2d 93).  Although the defendant also submitted the affidavits of Joseph C. Leonardo and his business partner, Stephen P. Manney, the affidavits were improperly submitted for the first time in reply (see Deutsche Bank Natl. Trust Co. v. Saketos, 158 A.D.3d 610, 72 N.Y.S.3d 167;  Mortgage Elec. Registration Sys., Inc. v. Losco, 125 A.D.3d 733, 733–734, 5 N.Y.S.3d 112;  Board of Mgrs. of Foundry at Washington Park Condominium v. Foundry Dev. Co., Inc., 111 A.D.3d 776, 777, 975 N.Y.S.2d 456).

Since the defendant failed to establish a reasonable excuse for her default in failing to appear or answer the complaint, it is unnecessary to consider whether she established the existence of a potentially meritorious defense (see Nationstar Mtge., LLC v. McLean, 140 A.D.3d 1131, 1132, 35 N.Y.S.3d 188;  Wells Fargo Bank, NA v. Besemer, 131 A.D.3d 1047, 1049, 16 N.Y.S.3d 819;  HSBC Bank USA, N.A. v. Miller, 121 A.D.3d 1044, 1046, 995 N.Y.S.2d 198;  Deutsche Bank Natl. Trust Co. v. Gutierrez, 102 A.D.3d 825, 825, 958 N.Y.S.2d 472).

Accordingly, we agree with the Supreme Court's determination to deny that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate so much of the orders entered February 26, 2015, as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against her.

SCHEINKMAN, P.J., MASTRO, BARROS and CONNOLLY, JJ., concur. Aprilanne Agostino