Nassau Educators Fed. Credit Union v. Mixon

Nassau Educators Fed. Credit Union v Mixon (2022 NY Slip Op 50919(U)) [*1] Nassau Educators Fed. Credit Union v Mixon 2022 NY Slip Op 50919(U) [76 Misc 3d 133(A)] Decided on September 15, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on September 15, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : ELIZABETH H. EMERSON, J.P., JERRY GARGUILO, TIMOTHY S. DRISCOLL, JJ 2021-529 S C Nassau Educators Federal Credit Union, Respondent, against Yeshai Mixon, Appellant. Yeshai Mixon, appellant pro se. Kirschenbaum & Phillips, P.C. (Jorge L. Vitureira of counsel), for respondent. Appeal from an order of the District Court of Suffolk County, First District (Cheryl M. Helfer, J.), entered July 27, 2021. The order denied defendant's motion to vacate a judgment of that court entered May 3, 2019 upon defendant's failure to appear or answer the complaint. ORDERED that the order is affirmed, without costs. Plaintiff commenced this action in 2019 to recover the principal sum of $1,857.39 for breach of a credit card agreement and upon an account stated. The affidavit of service of process states that the summons and complaint were delivered to defendant's grandmother at defendant's usual place of abode in Amityville, New York. The process server also mailed copies of the summons and complaint to defendant at the same address. Defendant failed to appear or answer the complaint, and, on May 3, 2019, a default judgment was entered against him. In June 2021, defendant moved to vacate the default judgment, arguing, among other things, that, at the time of service, he did not reside at the service address and that his grandmother, who has Alzheimer's disease, did not convey the summons and complaint to him. In opposition to defendant's motion, plaintiff alleged, among other things, that defendant had contacted plaintiff's counsel shortly after service had been made in order to negotiate a settlement, thereby implicitly acknowledging that he had received service. Defendant did not dispute plaintiff's allegation regarding his attempt to settle the matter. By order entered July 27, [*2]2021, the District Court denied defendant's motion. When a defendant moves to vacate a default judgment pursuant to CPLR 5015 (a) (1) and (a) (4), the court is required to resolve the CPLR 5015 (a) (4) jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur pursuant to CPLR 5015 (a) (1) (see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [2013]). To the extent that defendant sought vacatur of the default judgment pursuant to CPLR 5015 (a) (4), it is well settled that a process server's affidavit of proper service constitutes prima facie evidence of service, and, in order to rebut this showing and raise an issue of fact necessitating a traverse hearing, the party disputing service is required to submit a sworn, nonconclusory, and factually specific denial of service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719, 719 [2014]; U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1015 [2011]; Daimler Trust v Ferro, 58 Misc 3d 152[A], 2018 NY Slip Op 50116[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Here, plaintiff made a prima facie showing of proper service by submitting the process server's affidavit of service, which alleged that the summons and complaint had been left with a person of suitable age and discretion at defendant's usual place of abode and that another copy had been mailed to defendant's last known residence (see CPLR 308 [2]; Nationstar Mtge., LLC v Kamil, 155 AD3d 966, 967 [2017]; LaSalle Bank N.A. v Calle, 153 AD3d 801, 802 [2017]; Daimler Trust v Ferro, 2018 NY Slip Op 50116[U], *2). Defendant did not deny that he had lived at the address where service was effectuated, and he failed to provide documentation to support his claim that he had temporarily relocated from the service address or to state when such relocation had occurred. Moreover, while defendant claimed that his grandmother never conveyed the summons and complaint to him, he failed to explain why he had contacted plaintiff's counsel to discuss settlement if he had not received the summons and complaint. Defendant's unsubstantiated denial was insufficient to rebut the presumption of service (see U.S. Bank N.A. v Nakash, 195 AD3d 651, 652 [2021]; McCraley v Shvartsman, 174 AD3d 795, 796 [2019]; Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825 [2011]) or to establish defendant's entitlement to a traverse hearing (see HSBC Bank USA v Archer, 173 AD3d 984, 985 [2019]; Nationstar Mtge., LLC v Dekom, 161 AD3d 995, 996 [2018]). To the extent that defendant sought vacatur pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate both 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 NY2d 138, 141 [1986]; Torres v DeJesus, 197 AD3d 1260 [2021]; Hawthorne Gardens Owners Corp. v Jacobs, 47 Misc 3d 148[A], 2015 NY Slip Op 50822[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). The determination of what constitutes a reasonable excuse sufficient to vacate a default judgment lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]; see also Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]). In this case, we find that the District Court did not improvidently exercise its discretion in determining that defendant had failed to demonstrate a reasonable excuse for his default. In light of this conclusion, we do not consider whether defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Tlais v Cinozgumes, 189 AD3d 1293, 1294 [2020]; Lane v Smith, 84 AD3d 746, 748 [2011]). We reach no other issue. Accordingly, the order is affirmed. EMERSON, J.P., GARGUILO and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 15, 2022