Discover Bank, Respondent, v. Mark Lewis, Appellant. (2026)

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant's motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction is granted.

In this action to recover the sum of $7,283.09 based upon an alleged breach of a credit card agreement, the affidavit of the process server stated that the summons and complaint were served on defendant pursuant to CPLR 308 (2) on April 27, 2018, at 8:53 a.m. by delivering a copy to a "Mrs. Lewis (first name withheld), relative," at defendant's address on 197th Street in Queens and mailing a copy to the same address five days later.

Defendant did not answer or appear in this action and a default judgment was entered against him on February 13, 2019. In September 2024, defendant, pro se, moved to, among other things, vacate the default judgment, stating in his affidavit in support that he had not been served in this action. In a supplemental affidavit in support, defendant averred that he had not been properly served with the summons and complaint as neither he nor his family were living at the address where process was allegedly served in April 2018. He supported this allegation with documentary evidence. Defendant argued that the default judgment should be vacated and the complaint dismissed because he was not served as required by CPLR 308 (2) (see CPLR 5015 [a] [4]), or, in the alternative, that the default judgment should be vacated on the ground that his default had been excusable, due to his failure to receive service, and that he had a meritorious defense (see CPLR 5015 [a] [1]). Plaintiff did not submit opposition to the motion. By order dated January 13, 2025, the Civil Court (Joseph F. Kasper, J.) granted defendant's motion to the extent of vacating the default judgment and permitting defendant to amend his answer. The order was resettled on November 10, 2025 so as to reflect all of the papers submitted by defendant that the court considered in deciding the motion. Defendant appeals from so much of the order as, upon vacating the default judgment, denied the branch of his motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction pursuant to CPLR 5015 (a) (4).

Where service of process is effectuated pursuant to CPLR 308 (2), the summons and complaint must be left with a person of "suitable age and discretion" at a defendant's "dwelling place or usual place of abode" and another copy must be mailed to the defendant's last known residence. Generally, a process server's affidavit of service establishes a rebuttable presumption of service in the manner described (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]; Thornton Ams. Holdings (U.S.), LLC v Waldron, 75 Misc 3d 128[A], 2022 NY Slip Op 50374[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Here, in support of his motion, defendant submitted unrebutted documentary proof that, in 2016, he moved from the Queens address where service was purportedly effectuated and resided in East Meadow, New York, at the time of the purported service. Consequently, defendant was not served at his dwelling place or usual place of abode. As defendant demonstrated that jurisdiction was never obtained over him, the Civil Court should have granted the branch of his motion seeking to dismiss the complaint pursuant to CPLR 5015 (a) (4).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking to dismiss the complaint on the ground of lack of jurisdiction is granted.

BUGGS, J.P., MUNDY and LIN, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: September 18, 2026